Court Gives Thumbs Up to Katrina Climate Change Litigation

On Oct. 16, 2009, the U.S. Court of Appeals for the 5th Circuit joined the U.S. Court of Appeals for the 2nd Circuit in allowing a climate change common-law nuisance case to continue past the pleading stage. The 2nd Circuit was the first to allow a lawsuit against emitters of greenhouse gases to proceed based on common-law public nuisance theory. Please see Davis Wright Tremaine’s prior advisory on that case, Connecticut v. American Electric Power (Sept. 21, 2009). 

Meanwhile a district court in California has taken a contrary position by dismissing a common law nuisance suit brought by an Alaskan Native village. With two federal circuit courts now on board, the likelihood of a wave of climate change nuisance litigation increases, potentially leading Congress to resolve the issue as part of comprehensive climate change legislation.

Comer v. Murphy Oil, No. 07-60756 (5th Circuit)

In Comer v. Murphy Oil, a group of Gulf Coast landowners brought a class action against a group of energy companies, arguing that the defendants were responsible for greenhouse gas emissions that caused a sea level rise and increased the severity of Hurricane Katrina. The plaintiffs asserted nuisance, trespass and negligence claims. Unlike the plaintiffs in Connecticut, the Comer plaintiffs are seeking millions in damages, not just injunctive relief.

In a decision released on Oct. 16, 2009, a panel of the 5th Circuit overturned a lower court’s dismissal of the case and allowed Comer to proceed. The Comer court relied upon the U.S. Supreme Court’s decision in Massachusetts v. EPA to find that the injuries suffered by plaintiffs were caused by a condition—climate change—that was fairly traceable to the defendants’ conduct. The court went on to find that the resolution of the case did not present a political question.

Like the 2nd Circuit, the 5th Circuit framed the case as a simple tort suit between private plaintiffs, noting that the 2nd Circuit’s reasoning was “fully consistent” with its own. Also like the 2nd Circuit, the Comer court looked to the historic use of nuisance litigation to resolve cross-border air and water pollution cases, and found it to be an adequate tool to address climate change-related injuries. The defendants now have the choice of seeking review by the full 5th Circuit or a writ of certiorari from the Supreme Court.

Kivalina v. ExxonMobil, No. 08-1138 (N.D. California)

In Kivalina v. ExxonMobil, the Native Alaskan town of Kivalina sued a host of major energy companies and electricity providers, arguing that the emissions attributable to their fuels and power plants were contributing to a public nuisance, climate change. The Kivalina plaintiffs requested up to $400 million to enable them to relocate their village, which was threatened by melting sea ice. 

However, in a decision also released on Oct. 16, the U.S. District Court for the Northern District of California granted the defendants’ motion to dismiss, holding that the case presented political questions not suitable for decision by the judicial branch. The court went on to hold that the plaintiffs lacked standing to bring the suit because they had failed to show that climate change was fairly traceable to the defendants’ conduct. The Kivalina court conceded that the Supreme Court had found standing to challenge a climate change-related injury in Massachusetts v. EPA, but distinguished that case on the ground that the plaintiffs in Massachusetts asserted a statutory right, rather than one based on the common law.

Significantly, the Kivalina court reviewed the same authority as did the Connecticut court, yet came to precisely the opposite conclusion. Directly rejecting the reasoning of the 2nd Circuit, the Kivalina court wrote that the Connecticut decision fails to articulate any standard by which a judge presented with such a case could arrive at a principled decision. It is a virtual certainty that, barring an intervening Supreme Court case or change in federal law, Kivalina will be appealed to the U.S. Court of Appeals for the 9th Circuit.

Perhaps the clearest distinction between Comer and Kivalina is in how the suit is framed by the courts. The Kivalina court identified climate change as a uniquely complex, challenging issue with significant ramifications for national and international policy, and therefore nonjusticiable. The Comer and Connecticut courts, meanwhile, framed the climate change nuisance suits as simple, common-law actions between private parties, with limited national or international ramifications.

Will the Supreme Court or Congress intervene?

With the Comer decision, the 5th Circuit has joined the 2nd Circuit in permitting climate change nuisance suits to go forward. Presumably, the defendants in Connecticut and Comer will seek rehearing by a full panel at their respective circuit courts and, failing that, will file for a writ of certiorari from the Supreme Court.

Meanwhile, it is highly likely that the Kivalina plaintiffs will appeal the dismissal of their case to the 9th Circuit. Given the 9th Circuit’s historically liberal disposition, there is a strong possibility that it will reach the same conclusion as the 2nd and 5th Circuits.

Given that the Supreme Court is more likely to grant review to resolve a conflict among the circuits, it is less likely that it will act if all three courts come to the same conclusion. Thus, it may be up to Congress to craft a solution to the vulnerability faced by large emitters of greenhouse gases.

In the meantime, all significant emitters of greenhouse gases—including fossil-fuel companies, electric power providers, agricultural companies, auto manufacturers and other manufacturing companies—should take prompt action to assess their potential exposure to such a nuisance suit. Significantly, potential defendants should be aware that a suit could come not only from individuals or organizations in the same jurisdiction, but from any entity anywhere in the United States suffering damage as a result of climate change.