On October 16, the Fifth Circuit Court of Appeals held that residents and owners of property along the Mississippi Gulf coast had standing to assert public and private nuisance, trespass, and negligence claims against several energy, oil and chemical companies for emissions of greenhouse gasses, and that none of those claims presented nonjusticiable political questions. In its holding the appellate court reversed the trial court’s dismissal of the putative class action, which alleged that the companies’ greenhouse gas emissions contributed to global warming, caused a rise in sea levels, and added to the ferocity of Hurricane Katrina, causing extensive property damage. The Fifth Circuit’s decision follows closely on the heels of the Second Circuit’s recent decision in State of Connecticut et al. v. American Electric Power Company Inc. (“CT v. AEP”) holding that several states, New York City and private land trusts can seek injunctive relief against power companies to limit greenhouse gas emissions. Both of these decisions rejected earlier district court decisions that declined to hear climate change cases based on arguments that plaintiffs lack standing to sue for such a broad injury or that climate change cases present non-justiciable political questions.
Now that two courts of appeal have held that the federal courts are open for climate change claims, the battle lines will shift to issues that typically arise during later stages of litigation, including (1) whether plaintiffs will be able to establish a causal connection between the defendants’ greenhouse gas emissions and the specific harms they have suffered, (2) whether defendants (if held liable for money damages) should be assessed the full cost of harm or only their proportionate share of the total harm caused by all greenhouse gas emitters, (3) whether and how courts will fashion injunctive relief that includes mandatory reductions in emissions, and (4) whether claims of this type can proceed as class actions. The prospect of further litigation around these issues, as well as continued efforts by EPA to regulate greenhouse gases, will intensify efforts by companies to seek a comprehensive solution in Congress.
Just before the Fifth Circuit issued its decision, the United States District Court of the Northern District of California dismissed an action by the Eskimo Village of Kivalina against 24 oil and energy companies seeking $95-400M in damages for flooding and relocation impacts associated with global climate change. It remains to be seen whether the Ninth Circuit will join the Second and Fifth Circuits, reverse the district court, and uphold the right of the Kivalina plaintiffs to seek relief in federal court, but that outcome seems well within the range of possibility.
Many of the concerns raised by the district court in Kivalina, however, are likely to play out in all of these litigations, even if the cases are not dismissed at the initial stages on standing or political question grounds. For example, the Kivalina court rejected plaintiffs’ argument that federal courts could properly rely on standards developed in earlier air and water pollution cases, finding that prior cases involved impacts to geographically defined watersheds and airsheds, where there was a finite set of polluters contributing to the problem. By contrast, because the impacts of greenhouse gas emissions have no geographic constraints, the number of parties potentially responsible for climate change is essentially infinite.
The Kivalina court also expressed concern that plaintiffs would not be able to plead or prove that the “defendants’ conduct caused the plaintiffs’ injury in fact.” It concluded that the Kivalina plaintiffs could not plead or prove that any of the defendant’s polluting sources were the “seed of the injury” suffered by plaintiffs. A concurring opinion in the Fifth Circuit opinion also expressed considerable sympathy for defendants’ argument that the complaint “did not allege facts that could establish that the defendants’ actions were the proximate cause of the plaintiffs’ alleged injuries.” It remains to be seen how, on remand, the federal district courts in the Second and Fifth Circuits address this question. It may be difficult for plaintiffs to show that a particular greenhouse gas emission is the proximate cause of a particular injury, at least under a conventional proximate cause analysis. Faced with the near certainty that greenhouse gases are causing serious harm, however, the courts may approach the causation issue in a more pragmatic and less formalistic fashion. The Kivalina court stated strongly that it was unwilling to impose a form of enterprise liability on defendants, but one thing is certain – the Second and Fifth circuits have held that these claims should go forward.
- Read the Fifth Circuit’s Decision in Comer v. Murphy Oil USA, et al., No. 07-60756 (pdf)
- Read the full Kivalina decision (pdf)
- Read more on the emerging law of climate change
