Kivalina global warming litigation dismissed on political question grounds
In a carefully watched case in the Northern District of California, Judge Saundra Brown Armstrong has issued a ruling dismissing the Kivalina climate change lawsuit on grounds that: (1) it raises a non-justiciable political question, and (2) plaintiffs lack Article III standing. In so doing, Judge Brown rejected the recent Second Circuit analysis in Connecticut v. American Electric Power Co., which held that the political question doctrine did not bar nuisance claims against major greenhouse gas emitters.
In the Kivalina case, the Native Village of Kivalina, Alaska filed suit against two dozen energy companies, attempting to recover at least $400 million in damages for public nuisance related to emissions of greenhouse gases that Plaintiffs alleged contributed to global warming and caused the sea level to rise, destroying parts of the village. In addition to the public nuisance claim, Plaintiffs also included novel conspiracy allegations, claiming that the defendants conspired to mislead the public about the causes and effects of global warming through industry-sponsored trade groups.
The Village of Kivalina, located in northwest Alaska, comprises about 1.9 miles and has approximately 399 residents. In this lawsuit, the villagers alleged that global warming caused the melting of Arctic sea ice which formerly protected the village from winter storms, and that the increased pace of the melting ice has caused erosion. The plaintiffs contend that, "if the entire village is not relocated soon, the village will be destroyed." Their complaint alleged that 24 oil, gas and power companies substantially caused this global warming and the resulting damage to the village. Plaintiffs sought hundreds of millions of dollars in damages to compensate the villagers and relocate the village.
On the political question issue, the Court considered the Second Circuit’s recent decision in AEP, which reversed a district court opinion dismissing a similar climate change suit on political grounds. The Second Circuit concluded that political question doctrine did not bar nuisance-based climate change litigation, given the judiciary’s history of dealing with “new and complex problems.” In the Kivalina decision, Judge Armstrong bluntly responded: “This court is not so sanguine. While such principles may provide sufficient guidance in some novel cases, this is not one of them.”
The Kivalina Court went carefully through each of the factors set forth in Baker v Carr, 369 U.S. 186 (1962), which establishes the standard for determining when an issue presents a non-justiciable “political question” that is best left to the executive and/or legislative branches of government.
The Court noted that the cases relied on to support plaintiffs’ claims involved a “discrete number of ‘polluters’ that were identified as causing a specific injury to a specific area.” In contrast, the Kivalina “global warming claim is based on the emission of greenhouse gases from innumerable sources located throughout the world and affecting the entire planet and its atmosphere.” (Emphasis in original.)
The Court also distinguished global warming claims from other nuisance claims based on the long chain of disconnected events from emission to alleged harm (a chain of events that would pose a significant hurdle for plaintiffs on causation where, as in AEP, the initial claims survive a motion to dismiss):
“[T]he harm from global warming involves a series of events disconnected from the discharge itself. In a global warming scenario, emitted greenhouse gases combine with other gases in the atmosphere which in turn results in the planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which in turn causes the Arctic sea ice to melt, which in turn allegedly renders Kivalina vulnerable to erosion and deterioration resulting from winter storms.”
At bottom, the Court was unable to discern “judicially discoverable and manageable standards” to apply to plaintiffs’ claims, and noted that AEP, despite its holding, provided no guidance in this area. The Court concluded that “the allocation of fault—and cost—of global warming is a matter appropriately left for determination by the executive or legislative branch in the first instance.”
The Court separately found that plaintiffs lacked Article III standing given the “attenuated sequence of events” alleged in the complaint, and the inability to trace harm to a particular defendant’s emissions. The Court reasoned that, in this context, a discharge standing alone is insufficient to create a fairly traceable injury for Article III purposes.
The decision will likely be appealed to the Ninth Circuit Court of Appeals. Meanwhile, we still await a Fifth Circuit ruling in the appeal of the dismissal on justiciability grounds in Comer v. Murphy Oil, as well as the next steps in the AEP case following the Second Circuit’s reversal.
Recent DC Circuit decision limits standing of private parties to sue over climate change
The Court of Appeals for the District of Columbia Circuit recently issued an opinion in Center for Biological Diversity v. United States Department of the Interior (“CBD”). In the suit, three non-profit activist groups and one tribal government sued the Department of the Interior for failing to account for climate change when deciding to grant oil and gas leases off the Alaska coast. The ruling creates a hurdle for parties filing climate change based lawsuits. In the opinion, the DC Circuit holds that the petitioners lacked “substantive” standing to pursue their National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, though it did find that they had established procedural standing. The ruling also sets out specific limits on the application of the Supreme Court’s most recent decision on the regulation of greenhouse gases, Massachusetts v. EPA.
First, the CBD court found that Mass. v. EPA only applies to situations where a sovereign, such as a state, seeks to “assert its own rights as a state” and not the rights of its citizens. In the Supreme Court case, Massachusetts was able to claim that the EPA’s failure to regulate greenhouse gases was actually causing the diminution of shoreline which the state owned. The DC circuit thus held that Mass. v. EPA stood only for the proposition that “where a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where that sovereign’s individual interests are harmed, wholly apart from the alleged general harm.” The CBD court noted that since the tribal government plaintiff in their case did not actually own the offshore land that was directly affected, the holding in Mass. v. EPA did not extend to the analysis of their claim.
The court then analyzed whether the petitioners’ climate change claims could meet the traditional Article III standing test of showing “a concrete and particularized injury that is caused by, or fairly traceable to, the act challenged in the litigation and redressable by the court.” The court found that petitioners could not establish either injury or causation. Injury to the Arctic environment from climate change was first, too speculative, as it might occur at some point in the future, and second, too generalized, as it affected the world at large. Causation, according to the court, was too tenuous, as the chain of events between the leases and climate change involved too many third parties, such as oil companies and consumers.
This holding by the DC Circuit makes it more difficult for environmental groups to use the courts to address global warming. In addition to seriously curtailing the applicability of Mass. v. EPA, the opinion also indicates that generalized future “climate change” injuries, at least at present, will have a great deal of difficulty meeting Article III standing requirements.
Law professor's novel advocacy of public trust doctrine in climate litigation faces hurdles
A University of Oregon law professor has urged the use of the public trust doctrine to address climate change issues. Professor Mary C. Wood, speaking at the March 2008 Public Interest Environmental Law Conference, advanced what she refers to as “atmospheric trust litigation” as a new legal strategy in climate change litigation. She asserted that the atmosphere is an asset owned in common by the people and the government is the trustee of that asset. Her theory is “part of a roadmap for citizens to bring suit against their government.” Professor Wood says relief would come through declaratory judgments and “injunctive backstops” in which a court would require the government to show that “it’s reducing carbon in accordance with the scientifically defined fiduciary obligation.
While undeniably creative, the case for atmospheric trust litigation faces some significant hurdles. First, the public trust doctrine means different things in different states. Robin Kundis Craig’s “Quick and Dirty Guide to Eastern Public Trust Doctrines” gives a flavor for the variety of state public trust doctrines. Some refer to waters – and there the references vary from navigable waters to surface waters to groundwater. Others – like Massachusetts and Minnesota – refer to the air. And Virginia’s constitution references the atmosphere: “it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”
In other words, a key first question will be whether a state has a property interest in the atmosphere. At common law, courts have been unwilling to award states remedies or damages over resources which states do not own.
Second, in most states, the public trust doctrine provides standing only to the sovereign; making the public trust doctrine a poor tool for citizens to employ. Further, in some states like Wisconsin the courts even refuse to recognize an affirmative cause of action based on the public trust doctrine.
Third, injunctive relief – indeed any relief – in an atmospheric public trust case would be difficult to fashion given that actions within a state are not directly linked to the purported effects of climate change within the state. In other words, relief fashioned by the court in a state climate-based public trust case would not rectify the alleged harms.
Finally, public trust litigation would walk squarely into the political question doctrine and, possibly, issues like preemption issues under the Clean Air Act or CERCLA for natural resource damages.
While Professor Wood has lit the fire of creativity in suggesting this new direction for climate change plaintiffs, in reality it would be another branch of regulation-forcing litigation that would attempt to put a judge in the position of regulator (litigation which – as shown in the public nuisance context – has been unsuccessful). As Professor Wood noted in an interview about her theory:
Lawsuits often take decades, but judges have the power to structure their lawsuits to provide expeditious or even emergency relief. Every judge has the power to organize his or her docket to address climate crisis with the urgency that it demands. And my own feeling is that there will be judges out there who recognize that they are part of the third branch of government and that our government is sending the entire world into disaster by not dealing with climate. So there will be judges there that will accept this responsibility.
The question is whether it is the proper responsibility of judges to formulate climate policy. Michael Campana, Director of the Oregon State University’s Institute for Water and Watersheds, applauded Professor Wood’s creativity, but aptly described “the risk that courts will wind up formulating climate policy,” as a “dismal approach at best.
