• Courts Are Hearing Common Law Nuisance Actions on Climate Change
  • October 28, 2009 | Author: Harvey M. Sheldon
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Three recently decided cases point to the possibility of significant litigation arising out of the alleged impact of climate change, especially for larger sources of so-called greenhouse gases, even without Congressional legislation on the issue. In two of these actions, federal appellate courts upheld the respective plaintiffs’ right to assert federal common law nuisance claims based on the theory that carbon dioxide emissions have caused global warming, which has in turn resulted in unreasonable impacts on (among others) the plaintiffs in those actions. In the third case, however, a U.S. district court dismissed a village’s claims against large petrochemical firms and others, on the grounds that they posed a non-justiciable political question.

    State of Connecticut, et al. v. American Electric Power Company Inc., et al.
    In the first case, decided on September 21, 2009, the U.S. Court of Appeals for the Second Circuit reversed a district court's dismissal of nuisance claims against defendant electric power companies. State of Connecticut, et al. v. American Electric Power Company Inc., et al., ___ F.3d ___, 2009 WL 2996729. Defendants were alleged to be "substantial contributors to elevated levels of carbon dioxide and global warming." The nuisance claims arose out of allegations of the power companies' contributions to climate change.

    The Second Circuit analyzed whether the state plaintiffs and the non-state plaintiffs (New York City and certain land trusts) could assert a claim under a federal common law theory of nuisance. The court held that both sets of plaintiffs were entitled to allege a claim under the federal common law of nuisance. Specifically, the court of appeals held that the states' allegation that defendants' emissions and their contributions to global warming create a substantial and unreasonable interference with (1) public rights in plaintiffs' jurisdictions; (2) the right to public comfort and safety; (3) the rights to protection of natural resources; and (4) the right to use, enjoy and preserve the aesthetic and ecological values, sufficiently alleged an "unreasonable interference" with "public rights" within the meaning of Restatement (Second) of Torts, § 821. In addition, the court held that private parties may bring federal common law nuisance claims. The court reasoned that "[i]t would make no sense to carve out the federal common law of nuisance from other areas of the federal common law as the one area that permits states, and only states, to bring actions. Private parties and governmental entities that are not states may well have an equally strong claim to relief in a circumstance involving and overriding federal interest, or where the controversy touches issues of federalism."

    The court rejected defendants’ argument that the Clear Air Act is a "comprehensive legislative scheme" that displaces the common law. The Second Circuit reasoned in part that federal legislation did not displace federal common law nuisance claims because the U.S. Environmental Protection Agency (EPA) has not yet determined that greenhouse gas emissions are pollutants regulated under the Clean Air Act. Act.

    Comer v. Murphy Oil USA
    In the second case, decided on October 16, 2009, plaintiffs alleged that the massive emission of greenhouse gasses caused the sea level to rise and gave strength to Hurricane Katrina. Comer v. Murphy Oil USA, ___F.3d___ (No. 07-60756, Slip Op.). The U.S. Court of Appeals for the Fifth Circuit reversed a federal district court ruling that the private parties lacked standing to bring their claims based on common law property rights. The appellate court held that defense allegations that those claims were too factually conjectural to merit hearing was misplaced at the threshold pleading stage of the case.

    The Fifth Circuit found that “injury in fact” allegedly traceable to defendants’ conduct provided sufficient basis for standing to sue on the nuisance, negligence and trespass theories asserted. The court cited Massachusetts v. EPA 549 U.S. 497 (2007), in which the U.S. Supreme Court held that some causative effect identified by plaintiffs was sufficient to mandate EPA determination of whether carbon dioxide and other greenhouse gasses were causing harm and should be regulated under the Clean Air Act. The Fifth Circuit further noted that the fact that defendants only emitted a very tiny percentage of greenhouse gasses in the country did not prevent them from being sued. The court nevertheless found that plaintiffs’ unjust enrichment, fraud and conspiracy claims were not sufficiently credible to withstand dismissal at the pleading stage, as they amounted to non-justiciable general grievances.

    Native Village of Kivalina v. ExxonMobil Corporation
    The third in the trio of cases was brought by Inupiat Eskimos, who alleged that the ice barriers around their village in Alaska were allegedly melting due to global warming. The U.S. District Court for the Northern District of California dismissed plaintiffs’ common law nuisance claims, ruling that they posed serious justiciability problems for a court of law to deal with, given such attenuated causation and scientific hypotheses as were put forth. Native Village of Kivalina v. ExxonMobil Corporation, ___F. Supp__, (N.D. Cal., Sept. 30, 2009). The decision is likely to be appealed. Given the record of the Ninth Circuit (in which the Northern District of California is located) in similar matters and the appellate court rulings noted above, there is a strong possibility that the district court’s decision may be overturned.

    Do the Plaintiffs Have a Case?
    Advocates of greenhouse gas control have long believed that there is no question of the culpability of carbon dioxide in creating a climate crisis. Former Vice President Al Gore received a Nobel Prize for his 2006 movie called “An Inconvenient Truth.” The principal science adviser to President Obama, Dr. John Holdren, has declared that there can be no debate, that the science is decided, and that skeptics of carbon dioxide being at fault are “dangerous.”

    However, a great many accomplished scientists have publicly stated that there is no proof that carbon dioxide is a climate threat or culprit in climate change; that factual assumptions and predictions of temperature and climatic change in the United Nations Intergovernmental Panel on Climate Change’s reports are greatly mistaken; that the climate computer models are fundamentally incapable of prediction and that what they do predict has not occurred; that Mr. Gore’s movie has many flaws and misstatements; and that carbon dioxide (an atmospheric trace gas necessary to the life and vitality of plants) has not driven and in the future will not significantly affect the climate.

    Studies and data from a significant number of scientists and sources support an argument that the impact of carbon dioxide emission on the Earth’s climate is overstated, that other complex forces, rather than mankind’s activity, determine climate and carbon dioxide levels, and that a vigorous science-based defense is available to counter common law claims for nuisance and trespass allegedly due to human source carbon dioxide.

    The irony and challenge of the legal situation is that despite much activity on the legislative and regulatory fronts, in the end an American jury or a judge may get to use its/his/her common sense to decide whether carbon dioxide is a threat to the planet in a merits trial.