Tort law, which is traditionally used to protect property or collect monetary damages, is now being used with some initial success against electric utilities and coal, oil, and chemical companies for climate change harms from greenhouse gas emissions. Two recent federal appeals decisions have opened the door to climate change torts, and more litigation is on the horizon. The following guest post gives an inside perspective on climate change torts from an energy industry attorney (the attorney asked to remain anonymous for client confidentiality).
Last week, defendants in one of a handful of closely watched global-warming lawsuits sought rehearing en banc [a rehearing before a full panel of the circuit court] of a decision from the United States Court of Appeals for the Fifth Circuit, Comer v. Murphy Oil, 585 F.3d 855, (5th Cir. 2009). [The petitions for rehearing en banc filed by the numerous defendant oil, energy, and coal companies are available here, here, here, and here.]
Comer involves claims brought by residents of Mississippi against dozens of companies in the energy, fossil fuel production, and chemical industries, seeking money damages for injuries apparently sustained during Hurricane Katrina in 2005. Comer is the latest federal court decision allowing purported tort claims alleging wide-ranging damages from climate change to proceed past key threshold stages. The panel’s ruling follows on the heels of a Second Circuit decision, Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009) (“AEP”), permitting similar alleged tort claims to go forward. The primary differences between the cases are that AEP involves claims under the federal common law and seeks injunctive relief in the nature of a declining cap on defendants’ carbon dioxide emissions, whereas Comer purports to be based in Mississippi common law and seeks monetary relief for alleged property damage resulting from Hurricane Katrina. Although only a few data points exist, the panel’s decision also suggests a pattern to these so-called climate-change cases.
Four district courts have now dismissed analogous global-warming tort claims on the grounds that they either raise nonjusticiable political questions or that the plaintiffs lack standing to maintain a lawsuit for alleged global-warming damages. See Native Vill. Of Kivalina v. ExxonMobil Corp., No. C08-1138SBA (N.D. Cal. Sept. 30, 2009); Cal. v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2008); Comer v. Murphy Oil, No. 1:05-cv-00436-LG-RHW (S.D. Miss. Aug. 30, 2007); Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
In contrast, two appellate courts, the Second Circuit in AEP and the Fifth Circuit in Comer, have refused to allow the principle of separation of powers or the standing doctrine to defeat resolution of the plaintiffs’ global-warming grievances in an Article III court. The courts of appeal have ardently insisted that the judiciary has the tools and competence to resolve such claims, and they are unwilling to let the claims be defeated at an early stage where plaintiffs have purportedly asserted at least some relationship between their alleged injuries and the defendants’ alleged contribution to global warming.
The disparity between the opinions issued by the district courts and the courts of appeal is probably not surprising. It is the district courts, after all, that would need to determine precisely how to try these cases, were they to go forward. They are not approaching the cases abstractly or academically, but rather are faced directly with the formidable questions that such cases pose. Just how would principles of tort law apply to a case involving global warming? By what method would the court decide whether a particular company’s emissions (or supposed contribution to emissions, for example, by producing a fossil fuel that is later combusted by a third party) are “reasonable” – a bedrock principle in tort law – especially given the lack of statutes or regulations that might guide the answer to such a question? How would the court determine whether a particular company’s activities or emissions were the “proximate” cause of asserted global-warming damages, including property damage from a Hurricane that is alleged to have been fueled in strength by global warming-heated ocean waters? And how would the court apportion damages given that every entity on the planet emits one or more greenhouse gases – and has done so for centuries.
As the defendants’ petitions for rehearing en banc argue, the panel’s decision in Comer hardly grapples with the foregoing questions. Indeed, the panel construed applicable case law largely so it would not have to. In reviewing the district court’s decision dismissing the plaintiffs’ claims pursuant to the political question doctrine, for example, the panel found the traditional six-part test, articulated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 210 (1962), “not necessary or properly useful” in the case. It determined that the district court had erred in dismissing the case pursuant to Baker because a political question may only exist in cases that involve a question that is committed to the political branches by the Constitution or a federal statute, which Comer does not. By doing so, petitioners argue, the panel effectively circumvented the need to fully analyze, for example, Baker factors two and three, which four district courts have previously recognized render global-warming tort actions nonjusticiable. Those factors counsel dismissal when there is a lack of judicially discoverable and manageable standards for resolving a case and when it would be impossible to decide a case without an initial policy determination of a kind clearly for nonjudicial discretion.
Furthermore, the defendants’ petitions for rehearing en banc argue that the panel engaged in a cursory and flawed analysis of Article III standing. The panel apparently accepted, at face value, an implausible causal chain, in derogation of the pleading requirements recently articulated by the Supreme Court in Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Furthermore, it misconstrued the Supreme Court’s decision in Massachusetts v. EPA as applicable to the case, even though Massachusetts involved a procedural challenge under a federal statute asserted by a State party – neither of which is true in Comer. The panel’s decision on standing thus arguably relaxes relevant requirements beyond what even the Supreme Court’s slim majority is willing to recognize as sufficient under Article III. Finally, the petitioners argue that the panel relied inappropriately on Clean Water Act case law, predominantly from the Third and Fourth Circuits, and ignored the Fifth Circuit’s binding precedent demanding a geographic or other causative nexus between the plaintiffs’ injuries and the defendants’ activities. The plaintiffs’ so-called tort claims – rooted in the assumption that the defendants are liable simply for engaging in activities that contribute to the emissions of gases that mix in an undifferentiated fashion in the atmosphere – seemingly involve no nexus at all and, thus, fail to meet the Fifth Circuit’s strict test for standing.
Although rehearing en banc is not common, Comer arguably represents just the kind of case that warrants full panel review – both for the unique and exceptional issues it raises – which implicate interests well beyond those of the named defendants – and for the departure it represents from settled law. In a promising sign for petitioners, on December 2, the Fifth Circuit exercised its discretionary authority to direct the plaintiffs to file a response to the defendants’ petitions by December 14. If rehearing en banc is not granted, the next stop might be the Supreme Court.
Update: In February 2010, the Fifth Circuit Court of Appeals issued an order granting rehearing en banc and vacating the three-judge panel opinion. Only nine judges of the Fifth Circuit participated (out of 16); seven judges recused themselves from the decision and order to grant en banc review. Then, in May 2010, another judge recused himself, depriving the en banc panel of a quorum (with only eight of 16 judges able to participate). However, since the en banc panel had already vacated the three-judge panel’s opinion, the result was that the Fifth Circuit Court of Appeals reinstated the previously overturned district court’s 2007 order dismissing the case. Confused? Read the court’s en banc order for yourself, along with the dissents.
But the case may not be over yet. In August 2010, Comer's counsel petitioned the Supreme Court for a Writ of Mandamus ordering the Fifth Circuit to reinstate the appeal dismissed earlier in May for lack of quorum, or (if it still lacks a quorum) to vacate the order granting rehearing en banc (which operated to vacate the three-judge panel's earlier decision in Comer’s favor).