Global Climate Law Blog : Global Climate Law Blog : Published by Howrey Law Firm : Climate Attorneys and Environmental Lawyers

On Article III standing, the Fifth Circuit ruled that – for standing purposes – plaintiffs alleged an injury that was sufficiently traceable to alleged conduct of the defendants. The Court noted that Article III traceability is a liberal standard that does not equate to proximate causation (“an indirect causal relationship will suffice”). That distinction is important, because the court’s description of plaintiffs’ claim highlights the significant causation issues that loom on the merits:

“The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.”

The high hurdle that remains on causation was clear from Judge Davis’s special concurrence:

"The defendants argued an alternative basis for dismissal to the district court – that the plaintiffs failed to state a claim under common law. Specifically, the defendants argued to the district court that the plaintiffs failed to allege facts that could establish that the defendant’s actions were a proximate cause of the plaintiffs’ alleged injuries. If it were up to me, I would affirm the district court on this alternative ground."

On the political question doctrine, the Fifth Circuit reversed the district court, finding that “defendants have failed to articulate how any material issue is exclusively committed by the Constitution or federal laws to the federal political branches.” The court effectively treated “exclusive commitment” as a threshold issue, rendering application of the remaining Baker v. Carr standards for identifying non-justiciable political questions unnecessary. Following that conclusion, the court, in a conclusory paragraph, stated that the remaining Baker “formulations do not make the defendants’ arguments for nonjusticiability any more persuasive.”

But the Fifth Circuit’s spare discussion of the remaining Baker factors raises questions given the language of Baker, which does not treat exclusive commitment to the political branches as a threshold factor, just one of many that should be considered. The Kivalina court described the Baker factors as “six independent factors,” and the language of Baker appears to support that analysis (emphasis added):

"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.

For trend-watchers, note that every district court that has considered claims like those in Comer has dismissed those claims as non-justiciable. See Connecticut v. AEP (recently reversed), California v. General Motors (appeal withdrawn), and, most recently, Native Village of Kivalina v. ExxonMobil et al.. The two appellate decisions have reversed. In essence, the judges who would resolve tort-based climate cases do not believe there are judicially manageable standards to reach principled and rational decisions concerning the purported historical duties to emit lower amounts of unregulated greenhouse gases. Yet two appellate courts are saying – without much in the way of specifics – that these claims are judicially manageable.

In Kivalina, the district court directly responded to the Second Circuit ruling in AEP:

"Despite the admitted and significant distinctions between a nuisance claim based on water or air pollution and one, such as the present, based on global warming, neither Plaintiffs nor AEP offers any guidance as to precisely what judicially discoverable and manageable standards are to be employed in resolving the claims at issue. Although federal courts undoubtedly are well suited to resolve new and complex issues and cases, the Court is not persuaded that this is such a case. Plaintiffs’ global warming nuisance claim seeks to impose liability and damages on a scale unlike any prior environmental pollution case cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to reach a resolution of this case in any “reasoned” manner."

We now await the next steps in AEP and Comer and a likely appeal to the Ninth Circuit in Kivalina.

In the interview, Maples declares the scientific debate about climate change “over” – relying on the Intergovernmental Panel on Climate Change‘s conclusion that the emission of greenhouse gases from human activities has resulted in a measurable increase in temperature, which in turn has significant local, national and global health and environmental effects. He asserts that this scientific certainty has driven a shift in litigation defense strategy away from the science to the standing/political question defense. According to Maples “that’s essentially what the ‘standing’ defense is about. It’s too great of an issue for the courts. It has to be handled by the political leaders.”

But as noted in other posts and articles, the regulatory and quasi-regulatory conclusions that climate change is influenced by human activities do not address the specific causation questions that must be addressed in a tort case like Comer, which seeks to hold corporations responsible for damage caused by climate change. The fact that those battles have not occurred in Comer may not represent a shift in defense strategy – those battles have simply been unnecessary because the complaint was dismissed for lack of standing (“the Court finds that Plaintiffs do not have standing to assert claims against Defendants and that Plaintiffs’ claims are non-justiciable pursuant to the political question doctrine”).

The interview cites Maples’ view on proximate cause as follows: “Proximate cause is not simply cause in fact. We know what the cause in fact is – the science has told us that. But proximate cause has to do more with who could have prevented it.” While this definition doesn’t track Black’s Law Dictionary – which uses phrases like “[t]he last negligent act contributory to an injury, without which such injury would not have resulted,” and “[t]he dominant, moving or producing cause” – it does identify clear causation hurdles that the Comer plaintiffs must overcome if the dismissal of their case is reversed. In establishing cause in fact, plaintiffs would have to establish that Hurricane Katrina would not have occurred without defendant’s emissions. In other words, if Comer is reversed, causation looms large as an obstacle to plaintiffs’ success on the merits.

Causation problems notwithstanding, Maples states that, if Comer is reversed, new work done by Oxford University will help make his case and spur “massive litigation”:

It’s been tracked with great precision, as far as what each corporation’s contribution is, and that can now be extrapolated – especially based on some of the work, the computer modelling that’s coming out of Oxford University – that can now be extrapolated to a percentage of fault. It’s fantastic work that’s been done. Apparently it’s even more sophisticated than the work out of the University of Colorado.

They now can model the effect of man-made carbon contributions to the atmosphere, and the contribution that it has to global weather events. A (newspaper) article was sent to me a few weeks ago - it’s worth a story in and of itself probably - because the comment made was that it was going to lead to massive litigation.

While it is not clear what computer modelling Maples refers to, it may be that he is commenting on a “summary report” stating “preliminary findings” of B. Müller, Ch. Ellermann, M. Friman, N. Höhne, and R. Verheyen, entitled Differentiating (Historic) Responsibilities for Climate Change, available on the website of a company called Oxford Climate Policy. This preliminary report does not appear to be the kind of peer reviewed analysis that might support specific causation claims and is in large part focused on the philosophical questions of how responsibility should be shared for addressing climate change on an ongoing basis (not on the question of apportioning liability, based on cause, for climate change in general or specific weather events). Indeed, the report states as much in its conclusion: “The aim of this Report was to put forward and discuss a methodology for the numerical differentiations of responsibilities for climate change as opposed to calculating causal contributions to climate change.”

Still, Maples predicts “massive litigation” in the future from “big farming interests” who suffer droughts, to “communities ravaged by wildfires,” to “ski resorts that have no snow.” Maples says that the strategic model for the litigation will be based on tobacco litigation: “What’s good about the approach that I’m taking is that the tobacco litigation – and before that the asbestos litigation – demonstrates that one case can cause a gigantic litigation problem for corporations. It’s pretty much accepted history that asbestos and tobacco are the role models for climate change litigation now.”

Comer is a putative class action against insurance, oil, coal and chemical companies in which plaintiffs alleged that emissions contributed to climate change and thus magnified adverse weather events, including Hurricane Katrina. Comer was docketed in the Fifth Circuit (07-60756) in September 2007 and the appeal was argued on November 3, 2008.

In California v. General Motors, California sued six of the major automakers for allegedly “creating, and contributing to, an alleged public nuisance – global warming.” The district court dismissed the case in September 2007. The appeal was docketed in October in the Ninth Circuit (07-16908) in October 2007. Briefing was completed in August 2008 and oral argument was scheduled for May 8, 2009, but California requested a six month continuance of the argument which was granted on April 6, 2009.

Links to the decisions and appellate briefs in AEP, Comer and General Motors can be found in our earlier post on pending appeals.

In the time these cases have been pending, we have seen a Supreme Court decision that considered EPA’s authority to regulate greenhouse gas emissions, a change in administrations, a changing legislative and regulatory landscape on climate issues (including a proposed EPA endangerment finding), and a change in US involvement in international climate discussions. But with all this change, the “identification and balancing of economic, environmental, foreign policy, and national security interests” described by Judge Preska still looms on a global scale.

In a recent radio interview, Steve Susman was asked about the Kivalina litigation, in which he represents plaintiffs alleging that the Alaskan village of Kivalina is sinking as a result of climate change allegedly caused by defendant oil, power and coal companies.  The Susman interview supports the conclusion that the conspiracy allegation -- that defendants conspired to mislead the public on the causes and effects of global warming -- was intended to overcome a political question defense:  “we are the only case that has a conspiracy allegation, and we think that makes our case different, because courts all the time—there are criminal trials going on throughout this country every week about whether someone participated in a criminal conspiracy. So that's the stuff of which courts are made, to decide whether there was a conspiracy, and did it harm someone.” 

Likewise, Matt Pawa, whose firm filed the first climate-based public nuisance claim against power plants, noted that Kivalina “includes a claim that certain defendants conspired to mislead the public about global warming.  There were no such conspiracy claims in the other cases.  Courts routinely decide such conspiracy claims.” 

But the inclusion of a civil conspiracy claim may not be a silver bullet against a political question defense.  If the public nuisance claims are non-justiciable (as three district court’s have concluded, all now on appeal), there is a real question of whether the court can decide a stand-alone conspiracy claim.  For example, in the public nuisance cases brought by the state of Rhode Island against former manufacturers of lead pigment, the district court dismissed the civil conspiracy claim finding that it “cannot stand in isolation” without an “underlying intentional tort theory.”  Rhode Island v. Lead Industries Association, Inc.