Courts Address Global Warming Claims
By: TODD J. GUERRERO
November 9, 2009
Three recent decisions highlight how the federal courts are divided about how to handle new and complex global warming claims.
In September, in State of Connecticut v. American Electric Power (AEP), a United States Court of Appeals in New York overturned a lower court’s decision dismissing a lawsuit filed by eight states, New York City and several environmental organizations against six of the nation’s largest utilities asking the court to force the utilities to cap and then reduce their carbon dioxide emissions. Finding plaintiffs’ claims of potential catastrophic harm caused by global warming real, the Second Circuit ruled that the plaintiffs could continue with their lawsuit against the utility defendants.
The second case presented an almost identical claim. In Village of Kivalina v. Exxon Mobile, native Eskimos sued twenty-four oil energy companies claiming that the companies’ greenhouse gas emissions are contributing to the diminishment of the Arctic sea ice which protects the Village coast from winter storms, and that the resulting erosion will require relocation of the village’s 400 residents, at considerable cost. The district court dismissed the case, holding that the village’s case presented a “political question” and that plaintiffs couldn’t demonstrate an injury that could actually be remedied by the courts.
In the most recent case, decided October 16, 2009, a U.S. Court of Appeals in Mississippi overturned a lower court and found, similar to AEP, that residents and landowners along the Mississippi Gulf Coast could proceed with their class action lawsuit against a handful of energy and chemical companies. In Comer v. Murphy Oil, landowners asserted that the defendants’ greenhouse gas emissions were contributing to global warming, which, among other things, added to the ferocity of Hurricane Katrina that destroyed their property.
Each of the cases involved what is known as the political question doctrine. Based on the principle of separation of powers between the three branches of government, the doctrine is designed to restrain the courts from interfering with matters best left to the President and Congress. The lower courts in AEP and Murphy Oil both found that global warming was not something courts can or should handle. The appellate courts, however, found that notwithstanding the lack of any present state or federal standards for carbon dioxide emissions, courts are equipped to deal with global warming cases.
Relying on prior federal cases dealing with local pollution – e.g., cases dealing with sewage discharge into streams and rivers, copper foundry emissions, ocean garbage dumping, among others – the AEP and Murphy Oil courts found that well-settled principles of nuisance and tort law provide an appropriate level of guidance for federal courts to assess global warming claims. Indeed, in AEP, the court believed that rather than having to decide overarching policy questions about the effects of global warming and how best to reduce worldwide or even national greenhouse gas emissions, the claims presented by the plaintiffs were actually “discrete,” focusing only on the alleged injury to plaintiffs and not the globe generally. The AEP court: “that Plaintiffs’ injuries are part of a worldwide problem does not mean defendants’ contribution to that problem cannot be addressed through principled adjudication.” Rather than being called upon to fashion a comprehensive and far-reaching solution to global climate change, the court was only looking at adjudicating a claim to limit emissions from six power companies.
Both appellate courts also found that the plaintiffs had “standing” to bring their respective lawsuits. Standing is a doctrine that requires plaintiffs to first show they have an injury to a protected interest and that there is a connection between the injury and the defendant’s conduct. In strong language essentially concluding it considered global warming real and the potential harm catastrophic, the AEP court found that the state and environmental plaintiffs had alleged sufficient risk of future injury and that the utility companies’ emissions caused or contributed to their injuries. California, for instance, alleged that its winter snowpack, which the state relies on to provide much of its drinking water, has been decreasing steadily and is melting earlier, resulting in flooding, and that the severity of that injury will only increase over the course of the next century. The states and New York City also alleged that a rise in sea level caused by global warming will harm coastal infrastructure, including its airports, subways, tunnels, storm and wastewater facilities, causing potentially hundreds of billions of dollars of damage, over the next ten to one hundred years.
In both cases, the energy companies argued that the type of injuries alleged, occurring for the most part at some unspecified, future date, are insufficient to allow a plaintiff to recover damages in a court of law. The courts, however, disagreed and found the defendants’ alleged contribution to the alleged harm sufficiently “traceable” for purposes of standing. Indeed, the AEP court found that the plaintiffs’ future and catastrophic injuries are “certainly impending” and that based on the laws of physics and chemistry, there “is no probability involved” in predicting plaintiffs’ future injuries.
Neither the AEP and Murphy Oil decision means that the plaintiffs are entitled to any relief at this point. Both cases were sent back to the lower district courts for further proceedings to determine whether plaintiffs can actually prove their claims. Both cases are also likely to be further appealed.
Meanwhile, the Kivalina court, like the lower courts in AEP and Murphy Oil, found that courts were the improper forum to address injuries allegedly caused by global warming. The Kivalina court strongly disagreed with the AEP’s court’s reasoning that well settled legal principles provide appropriate judicial guidance on global warming claims. It found that the prior cases like those relied on by AEP were far different than claims based on global warming. In the prior cases, each involved a discrete number of “polluters” that were readily identifiable as causing a specific injury to a specific area. Unlike these prior cases, considerations involved in greenhouse gas emissions and global climate change are “entirely different” than those germane to local water or air pollution cases. While past pollution claims involved discrete, geographically definable locations or waterways, the plaintiffs’ global warming claim in Kivalina is based on greenhouse gas emissions “from innumerable sources located throughout the world and affecting the entire planet and its atmosphere.” Kivalina: “while such principles may provide sufficient guidance in some novel cases, this is not one of them.”
The AEP and Murphy Oil decisions will undoubtedly embolden other plaintiffs to move forward on similar global warming charges. Kivalina will likely be appealed. Until Congress enacts some form of comprehensive greenhouse legislation or the Supreme Court weighs in to settle the law, the controversy over how courts handle global warming cases will continue. The stakes for both sides appear to be enormous.