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Climate Change Lawsuits Get Chilly Reception

June 19, 2012

The U.S. District Court for the District of Columbia recently dealt another blow to advocacy groups attempting to compel federal action on climate change via common law causes of actions. Alec L. v. Jackson, --F. Supp.2d --, 2012 WL 1951969 (D.D.C. May 31, 2012). The court dismissed a lawsuit alleging that six federal agencies had violated their fiduciary duties to preserve and protect the atmosphere as a commonly-shared resource under the public trust doctrine. Relying on the Supreme Court’s recent decision in PPL Montana, LLC v. Montana, the court ruled that the plaintiffs’ public trust claims arose under state law and did not present a federal question over which the court had jurisdiction. The court also ruled, in the alternative, that even if a federal cause of action existed, the public trust doctrine had been displaced by the Clean Air Act. The court’s preemption rulings were based, in large part, on the Supreme Court’s landmark decision in American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (AEP), in which the Court held that federal common law nuisance claims seeking to enjoin greenhouse gas emissions were non-justiciable under the political question doctrine.

The court’s order in Alec L. is the latest in a string of recent decisions dismissing common law climate change lawsuits. Prior to Alec. L, the U.S. District Court for the Southern District of Mississippi dismissed a class-action lawsuit that sought monetary compensation from chemical and oil companies for damages suffered during Hurricane Katrina. Comer v. Murphy Oil USA, -- F. Supp.2d --, 2012 WL 933670 (S.D. Miss. Mar. 20, 2012). The court ruled that the plaintiffs lacked standing; that their claims were barred by res judicata and the political question doctrine; and that the common law claims had been displaced by the Clean Air Act. As discussed below, common law claims filed in state court have met with similar fates.

While the weight of authority suggests that courts will not entertain common law climate change cases, the door has not been completely shut. AEP left open the question of whether common law suits seeking monetary damages (as opposed to claims seeking to enjoin emissions) remain viable. Such a case, Native Village of Kivalina v. ExxonMobil Corp., is currently pending before the Ninth Circuit, and the decision in that case is certain to further shape the contours of standing and justiciability in relation to common law climate litigation.

I. Alec L. & Other Public Trust Doctrine Cases

In May 2011, Our Children’s Trust (OCT) filed lawsuits or petitions in at least twelve states that sought to enjoin greenhouse gas emissions under the public trust doctrine. A similar lawsuit, Alec L. v. Jackson, was filed in U.S. District Court for the Northern District of California (and subsequently removed to the District Court for the District of Columbia). The lawsuits are all premised on the same basic proposition – that the atmosphere is a commonly-shared public trust resource, and that various government entities failed to fulfill their fiduciary duties under the public trust doctrine to protect that resource by requiring power producers and industrial facilities to abate their greenhouse gas emissions.

 A. Alec L.

Alec L. v. Jackson, was filed against EPA, and the Departments of Interior, Agriculture, Commerce, Energy, and Defense. The complaint alleged that those agencies had a fiduciary duty, as public trust custodians, to restore global atmospheric concentrations of CO2 to levels less than 350 parts per million, and that they had “wasted and failed to preserve and protect the atmosphere” as a public trust resource. The plaintiffs sought an order from the court requiring the agencies to, among other things, take action so that global CO2 emissions from fossil fuels would peak by 2012, and would be reduced by at least six percent per year through 2050.

In its decision, the district court first addressed whether it had jurisdiction over the plaintiffs’ claims. Generally speaking, federal courts have jurisdiction if a case raises a question under federal law, or involves litigants with a diversity of jurisdiction (i.e., litigants residing in different states). The district court ruled that neither federal question nor diversity jurisdiction existed. The plaintiffs argued that their lawsuit presented a federal question because the public trust doctrine was not “exclusively a state law doctrine.” The court disagreed, deciding that the Supreme Court’s holdings in PPL Montana foreclosed that argument. In that case, the Supreme Court held that “the public trust doctrine remains a matter of state law” and its “contours … do not depend upon the Constitution.” The court accordingly concluded that the plaintiffs had not raised a federal question.

The district court next addressed whether diversity jurisdiction existed between the plaintiffs and the federal agency defendants. The court ruled that it lacked diversity jurisdiction because “it is well established … that the United States is not a citizen for diversity purposes and that U.S. agencies cannot be sued in diversity.”

The court also ruled that even if the public trust doctrine had been a federal common law claim at one time, it had been displaced by the Clean Air Act. The court relied on the Supreme Court’s 2011 opinion in AEP. That case involved efforts to abate greenhouse gas emissions from power plants under the federal common law of nuisance. The Supreme Court rejected those claims, holding that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”

The plaintiffs in Alex L. attempted to distinguish AEP, arguing that the Supreme Court’s holdings were limited to common law public nuisance claims (as opposed to plaintiffs’ pubic trust claims). The court rejected that argument, noting that that the Supreme Court did not limit its holdings to only common law nuisance claims; rather, the Supreme Court held that “any federal common law right” with respect to carbon dioxide emissions had been displaced by the Clean Air Act. The court went on to observe that the public trust lawsuit involved the same basic questions as the public nuisance lawsuit at issue in AEP. Both causes of action would require the court to make specific determinations as to the appropriate atmospheric concentrations of carbon dioxide, and mandate that federal agencies undertake specific regulatory activity – even if not required by statute. “These are determinations,” the court ruled, “that are best left to the federal agencies that are better equipped, and that have a Congressional mandate, to serve as the primary regulator of greenhouse gas emissions.” (quoting AEP). The court accordingly dismissed the plaintiffs’ claims.

B. State Law Claims for Abatement

OCT’s state-level lawsuits have not faired any better that the federal case, Alec L. In April 2012, an Oregon trial court dismissed a similar public trust lawsuit. Chernaik v. Kitzhaber, Case No. 16-11-09273 (Lane County Circuit Court, Oregon, Apr. 5, 2012). Like many states, Oregon has adopted greenhouse gas emission reduction goals.[1] The plaintiffs in Chernaik alleged that those goals, and other measures adopted by the state, were inadequate and resulted in the state failing to adequately protect the atmosphere as a public trust.

The trial court rejected those claims on numerous grounds, including that the proposed remedy exceeded the court’s authority under the Declaratory Judgment Act because it would require the court to “extend the law by creating a new duty rather than interpret[ing] a pre-existing law.” Additionally, the court ruled that the separation of powers doctrine barred the plaintiffs’ claims:

Whether the Court thinks global warming is or is not a problem and whether the Court believes the Legislature’s [greenhouse gas] emission goals are too weak, too stringent, or are altogether unnecessary is beside the point. These determinations are not judicial functions. They are legislative functions.

The court concluded that the plaintiffs’ claims were barred by the political question doctrine:

Plaintiffs ask this Court to cap [greenhouse gas] emissions at the levels recommended by Plaintiffs, rather than those already established by the Legislature. That is a policy decision that has already been addressed by the Legislature. With the Legislature this decision should remain.

Lawsuits in Alaska and Washington have also been dismissed on similar grounds. See Kanuk v. Alaska Dep’t of Nat. Res., Case No. 3AN-11-0747CI (Ak. Super. Ct. Mar. 16, 2012); Stivak v. Washington, Case No. 11-2-16008-4 SEA (King Co. Super. Ct. Feb. 29, 2012).

II. Common Law Claims Seeking Monetary Damages – Kivalina, Comer, and AES

Common law claims seeking injunctive or declaratory relief have thus far uniformly been rejected by both federal and state courts, but the issue of whether common law claims seeking monetary damages remains open. Earlier this year, the U.S. District Court for the Southern District of Mississippi issued the latest ruling in the long-running saga of Comer v. Murphy Oil. In the wake of Hurricane Katrina, plaintiffs filed a class action lawsuit arguing, among other things, that the greenhouse gas emissions allegedly attributable to a number of oil, refining, and chemical manufacturing companies constituted a public nuisance, and that the plaintiffs were owed monetary damages.[2] In 2007, the district court dismissed the lawsuit on grounds that the plaintiffs lacked standing because their injuries were not fairly traceable to the defendants’ alleged actions. The court also ruled that the case presented a non-justiciable political question.

On appeal, the Fifth Circuit reversed the district court’s political question rulings. The court held that while the case might be “political … in the broad sense, i.e., that it has political implications or ramifications,” that fact alone was not enough to render the case non-justiciable, since federal courts routinely decide cases “that merely implicate[] a matter within the authority of a political branch,” including judicial review of federal statutes and resolution of disputes regarding the limits of authority of the political branches. The defendants sought, and were granted, rehearing en banc. However, after rehearing was granted, a number of justices were recused due to conflicts, resulting in the loss of a quorum. Without a quorum, the Fifth Circuit was unable to “transact judicial business,” and accordingly directed the clerk to dismiss the plaintiffs’ appeal. The original opinion could not be reinstated because there was no quorum, and the clerk’s office was accordingly instructed to dismiss the appeal.

In 2011, Comer and certain other plaintiffs filed a new class action lawsuit, once again seeking relief under both federal and state common law nuisance theories. In March 2012, the district court ruled that those claims were barred by the principles of res judicata and collateral estoppel because they involved the same litigants and same claims as the original Comer lawsuit.

As it did in the original Comer case, the district court also ruled that the plaintiffs lacked standing to pursue their claims. Specifically, the court ruled that plaintiffs had failed to establish a causal connection between the defendants’ emissions and their injuries:

EPA’s findings that greenhouse gases contribute to global warming, which in turn creates a danger for rising sea levels and extreme weather events, does not in and of itself support the contention that the plaintiffs’’ property damage is fairly traceable to the defendants’’ emissions. At most, the plaintiffs can argue that the types of emissions released by the defendants, when combined with similar emissions released over an extended period of time by innumerable manmade and naturally-occurring sources encompassing the entire planet, may have contributed to global warming, which cased sea temperatures to rise, which in turn caused glaciers and icebergs to melt, which cause se levels to ruse, which may have strengthened Hurricane Katrina, which damaged the plaintiffs’ property.

The court also ruled that the plaintiffs’ claims presented a non-justiciable political question and were preempted by the Clean Air Act.

Although the plaintiffs in Comer were twice unsuccessful, it remains to be seen whether plaintiffs in other forums may fair differently. A long-watched climate change lawsuit is currently pending before the Ninth Circuit – Native Village of Kivalina v. ExxonMobil. In that case, a Native village in Alaska alleges that decreased icepack associated with climate change has exposed their seaside village to increased storms and flooding and rendered it uninhabitable. The plaintiffs seek to recover, under a common law nuisance claim, the costs associated with moving their village to a new inland location. Like the plaintiffs in Comer, the plaintiffs in Kivalina seek monetary damages. Their lawsuit was dismissed by the U.S. District Court for the Northern District of California in 2010 on grounds that the plaintiffs lacked standing and that the case presented a nonjusticiable political question. It remains to be seen whether the Ninth Circuit will tack a different course. The Kivalina appeal is fully briefed, argued, and has been submitted to the court for a decision.

In a case related to Kivalina, the Virginia Supreme Court recently affirmed that an insurer’s duty to defend is not triggered by allegations of damages flowing from intentional actions that the plaintiffs claim resulted in climate change. AES Corp. v. Steadfast Ins. Co., --S.E.2d--, 2012 WL 1377054 (Apr. 20, 2012) (AES). AES, one of the defendants in the Kivalina action, requested that its insurer, Steadfast, defend AES and provide insurance coverage for any judgments that may be awarded in that case. Steadfast subsequently filed a lawsuit, seeking a declaration that it had neither a duty to defend nor a duty to indemnify AES. The trial court ruled in favor of the insurer, holding that Steadfast had no duty to defend AES because the allegations in the Kivalina complaint did not constitute an “occurrence” within the meaning of the general liability policies that Steadfast had sold to AES. AES appealed to the Virginia Supreme Court, which affirmed. 715 S.E.2d 28 (2011). Rehearing was granted, and the court’s opinion was set aside. The court, however, reaffirmed its holdings last month.

III. Conclusion

To date, climate change lawsuits brought under the common law have been unsuccessful at both the federal and state level – particularly those cases seeking to enjoin greenhouse gas emissions. Questions remain open, however, as to whether claims seeking monetary damages may ultimately prove successful. The Ninth Circuit’s forthcoming decision in Kivalina is certain to shed light on the issues of justiciability and standing that have so far thwarted other lawsuits.

For more information, please contact any member of Marten Law’s Climate Change or Litigation practice groups.

[1] Oregon has set goals to reduce the state’s greenhouse gas emissions to 75 percent below 1990 levels by 2050. ORS 486A.205(1).

[2] The public nuisance claims in Comer were brought under Mississippi law, and although the case did not present a federal question, the district court had jurisdiction on diversity grounds.

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