Global Warming Litigation

Karin T. O'Connell

While legislation to address global warming remains a heated topic on Capitol Hill, creative efforts in other venues to address this issue and to put pressure on power companies and others to accept carbon emissions limits are meeting with some success.  Two recent opinions from the United States Court of Appeals have declared that individuals have the right to sue private businesses for damages suffered as a result of global warming. 

In Comer v. Murphy Oil USA (No. 07-60756), decided October 16, 2009, the Court of Appeals for the Fifth Circuit (TX, MS, LA) held that residents and owners of lands and property along the Mississippi Gulf coast have standing to sue numerous defendant companies, which operate energy, fossil fuels, and chemical industries in the United States, under theories of public and private nuisance, negligence, and trespass.  The thrust of the plaintiffs’ lawsuit in that case was that the defendant companies caused the emission of greenhouse gases that contributed to global warming, which in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which destroyed the plaintiffs’ private property as well as public property useful to them.

The defendant companies had moved to dismiss the lawsuit, claiming, among other things, that the case was political, and thus not “justiciable” under federal law.  The district court judge for the Southern District of Mississippi agreed with that argument, stating,

“[Global warming] is a debate which simply has no place in the court, until such time as Congress enacts legislation which sets appropriate standards by which this court can measure conduct…and develops standards by which …juries can adjudicate facts and apply the law….  Under the circumstances, I think that the plaintiffs are asking the court to develop those standards, and it is something that this court simply is not empowered to do.”

Upon appeal, however, the Fifth Circuit reversed that decision, holding that the claims do not present any specific question that is exclusively committed by law to the discretion of the legislative or executive branch.  Said the court, “[T]he questions posed by this case, viz., whether defendants are liable to plaintiffs in damages under Mississippi’s common law torts of nuisance, trespass or negligence, are justiciable because they plainly have not been committed by the Constitution or federal laws or regulations to Congress or the president.”  

The question of what is justiciable and what is not is difficult to answer, and the court’s opinion in Comer recited the history of the notion from as far back as 1803.  Cited examples of cases wherein political, nonjusticiable issues were discussed include foreign relations, dates of duration of hostilities, and the status of Indian tribes.  The court concluded that, “a federal court’s dismissal of litigation between private citizens based on state common law, as presenting a nonjusticiable political question, has rarely, if at all, been affirmed by a federal court of appeals.”  

Just a month prior to the Comer decision, the Court of Appeals for the Second Circuit (VT, NY, CT) held that eight state Attorneys General could sue five power companies under a theory of public nuisance based upon the companies’ greenhouse gas emissions.  Connecticut v. American Electric Power Companies Inc. (05-05104), decided September 22, 2009.

In that case, as in Comer, the lower court had dismissed the case, claiming that it had no power to adjudicate what it believed was a political issue.  It rejected the claimants’ arguments that they were presenting simple nuisance claims which courts routinely adjudicate.  Instead, the court said the claim touched on many areas of national and international policy and the broad reach of the issues presented revealed the “transcendently legislative nature of this litigation."  The court felt it would have to make decisions about appropriate levels of emissions caps and consider how that would impact U.S. climate change negotiations with other countries, among other things, all without an initial policy determination from the elected branches.

The Second Circuit disagreed, stating that the claimants were not asking the courts to fashion a comprehensive and far reaching solution to global climate change, a task that arguably falls within the purview of the political branches.  Rather, they were seeking to limit emissions from six domestic coal-fired electricity plants on the basis that such emissions constitute a public nuisance, causing them injury.

(A similar global warming case was filed three years ago in California against six of the major automakers.  That case was also dismissed by the lower court and then appealed by the claimant, the Attorney General of California.  Again, the cause of action was public nuisance caused by global warming. California v. General Motors, et al. (No. 07-16908) .  However, the case was voluntarily dismissed by the Attorney General this past summer.  In its motion for dismissal, the AG cited the administration's efforts to establish tighter fuel efficiency standards as well as the EPA's recognition that carbon dioxide and greenhouse gases must be regulated.)

Although proving their cases would be enormously expensive to the claimants in the unlikely event their cases were ever to proceed to trial, the fact that the cases have been determined to be justiciable by the federal appellate court represents a real threat to the power industry and brings more pressure to bear on all participants in the legislative arena.

If you have any questions or would like a specific situation explored in more detail, please contact Karin T. O'Connell at 312.899.1616 (or by email at koconnell@gouldratner.com) or Richard R. Elledge at 312.899.1623 (or via email at relledge@gouldratner.com). 

The articles and opinions contained in The Gould & Ratner Environmental Update are summaries of current general legal matters. The opinions expressed are not intended to be construed as legal advice.

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