All posts tagged 'Certiorari'

Climate Change and the Supreme Court Part II: Certiorari Granted in Connecticut v. American Electric Power

December 6, 2010 07:35
by J. Wylie Donald
It doesn't take much insight to conclude that today's granting by the Supreme Court of the petition for certiorari in Connecticut v. American Electric Power could be the start of a whole new era in climate change liability lawsuits. If the Supreme Court comes down on the side of the plaintiff States, it may become open season on utilities, coal and petrochemical companies, automobile manufacturers, and anyone else a litigation-minded plaintiff wishes to mulct in damages for carbon dioxide emissions and climate change. Potential defendants need to take steps now to identify their insurance coverage and be prepared to give notice. The Supreme Court last looked at climate change in 2007 when it concluded in Massachusetts v. EPA, 549 U.S. 497 (2007), by a 5-4 decision, that the Clean Air Act required the USEPA to consider whether carbon dioxide and other greenhouse gases were air pollutants within the meaning of the Act. The issue this time is whether the courts should be imposing judicial remedies for injuries allegedly arising from the emission of carbon dioxide, an alleged nuisance. Few reading this blog will need an introduction to Connecticut v. American Electric Power. I won't go over it other than to remind readers that it was filed in New York federal court in 2004 by several states against a collection of carbon dioxide-emitting utilities and was then consolidated with similar cases filed by public interest groups. The basic allegation was that the utilities' carbon dioxide emissions constituted a public nuisance and the plaintiffs sought injunctive relief compelling the utilities to reduce their emissions. On motion, the trial court dismissed the case concluding that the political question doctrine applied because only the political branches (i.e., the legislative and executive arms of the government) could appropriately balance the array of environmental, economic and other issues presented. An appeal followed to the Second Circuit, which reversed and held that the political question doctrine does not preclude federal common law nuisance claims. Following denial of a petition for en banc review, the petition for certiorari was filed on August 2, followed shortly by an amicus curiae brief from the Obama administration. The federal government asserted that the Second Circuit's decision should be vacated because the government was developing regulations and that the courts should stay out. Of course Connecticut v. American Electric Power is not alone. Private and public plaintiffs have brought suit for alleged climate change losses arising in Mississippi, California and Alaska. Although all three cases have been dismissed, the appeal of one was withdrawn, the appellate panel in the second reversed the dismissal, but which was then vacated when the en banc court accepted review and then could not muster a quorum, and the third is pending before the Ninth Circuit. See Cal. v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2009); Comer v. Murphy Oil Co., 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), rev'd, 585 F.3d 855 (5th Cir. 2009), reh'g granted, 598 F.3d 208 (5th Cir.), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010); Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir. Nov. 5, 2009). Quite clearly, the last chapter on these types of lawsuits has not been written. Reading the tea leaves on Connecticut v. American Electric Power will be difficult. To grant a petition for certiorari, only four justices need to approve. With the retirement of Justices Stevens (author of Massachusetts v. EPA) and Souter (who joined in the opinion), and the recusal from Connecticut of Justice Sotomayor (who heard argument at the Second Circuit but did not sign the opinion), a 4-4 decision in Connecticut is certainly possible. That would leave the Second Circuit's decision intact without a Supreme Court decision (which might bode well for the appeal of Kivalina before the Ninth Circuit). IMPLICATIONS FOR A DECISION Emitters of carbon dioxide are hoping for a clean decision that puts the climate change liability genie back in the bottle and lays the theory of federal common law nuisance in its grave. But what if that does not occur? There is certainly a fair chance that the justices either affirm the theory, or, 4-4, do not reject it. In that case, plaintiffs' lawyers are very likely to be emboldened and bring other suits. Some target industries have already been identified. When the results of USEPA's greenhouse gas reporting rule are collated, other industries may find themselves in the crosshairs. The time to identify insurance coverage is not when half a dozen claims have been filed in jurisdictions across the nation demanding an answer within 30 days. Climate change defendants and potential defendants should take steps now to prepare for future claims, most notably because of the risk they may lose insurance coverage for these claims if they are not reported timely. Many will rely on notice to their current insurer and that is a good strategy, so far as it goes and only if that carrier agrees to coverage. But besides one's current policy, one should also be considering prior "occurrence-based" policies, which could be triggered based on allegations of injury-causing events occurring over time. It does not require much imagination to analogize the time periods over which, for example, glaciers have melted, snowpack has become depleted, erosion has increased, and water supplies have been drawn down to other drawn-out injuries that established the "continuous trigger" rule that attached multiple policies. Some states have a bright line rule for notice. If it is not given promptly, dismissal based on late notice is a likely result. Other states are more lenient and require prejudice to the insurer. New York until recently was a no-prejudice-to-the-insurer state. But the law changed in 2009 to require the insurer to show prejudice (or the insured to show no prejudice) - but it was not retroactive. Accordingly, insureds with policies subject to New York law (which is often the case due to a choice of law provision in the policy) prior to 2009 still need to give notice promptly. Even in those states that require prejudice to be shown, one cannot know how the case law on prejudice will evolve in the context of climate change; hence prompt notice is a good idea in other states as well. Notice here is not as easy as it may sound. Unlike Superfund cases where the (alleged) responsible entity is identified by the claimant and therefore can be identified to the insurance company, carbon dioxide emission liability can fall to any fossil-fuel fired plant owned by the corporate entity, including potentially those operated by subsidiaries. Accordingly, those subsidiaries' policies may need to be tracked down and placed on notice as well. Taking liberties with Ben Franklin's adage, an ounce of protection is worth a pound of cure. Should climate change claims get the green light from the Supreme Court, policyholders would be wise to have located all of their protection ahead of time.

Carbon Dioxide | Carbon Emissions | Climate Change | Climate Change Litigation | Insurance | Supreme Court | Utilities

How Do You Spell Certiorari? Climate Change Suits En Banc

April 1, 2010 18:33
by J. Wylie Donald
"Plaintiffs' homeowner's insurance premiums have dramatically increased as a result of global climate change." So asserts Ned Comer and his co-plaintiffs in their Supplemental Brief on Rehearing En Banc, filed yesterday with the Fifth Circuit in the en banc appeal of Comer v. Murphy Oil USA. Although those premiums do not resurface anywhere else in the brief, presumably their insertion is to demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not 'conjectural' or 'hypothetical'. Lujan v Defenders of Wildlife, 504 U.S. 555, 560 (1992). In other words, they may establish the constitutional base for standing. Little did we know ....   Unfortunately for the plaintiffs, the requirements for standing do not stop there. The Lujan decision continues: "there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant ..." Id. Plaintiffs are dismissive of the Comer defendants' abilities to sustain their arguments on this point. That may be myopic. The causation hurdle was expressly enunciated in the district court's opinion: "I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gases; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gases, to global warming; and the extent to which the emission of greenhouse gases by these defendants, through the phenomenon of global warming, intensified or otherwise affected the weather system that produced Hurricane Katrina."  Comer v. Nationwide Mut. Ins. Co., Civ. A. No. 1:05 CV 436-LTD-RHW, 2006 WL 1066645, *4 (S.D. Miss. 2006). Defendants recognize a winning argument and are pressing it in their papers: "Plaintiffs' claims require a piling of inference upon inference to causally connect Defendants' GHG emissions with damages suffered by Plaintiffs during Hurricane Katrina." Petition for Rehearing En Banc.  As stated in the defendants' introduction: "Plaintiffs seek to impose liability on Defendants premised on conclusory and speculative allegations: Defendants' GHG emissions over decades, along with the emissions of millions of other actors around the world, contributed to global warming, which in turn increased ocean temperatures, which in turn raised the possibility of hurricanes forming with increased ferocity, which in turn contributed to Hurricane Katrina's strength, which in turn harmed Plaintiffs."  Id.  Plaintiffs counter, however, that proximate cause simply is not an element of standing analysis. Coupled with the causation element of standing, defendants also re-assert the political question doctrine, which was adopted by the Native Village of Kivalina v. ExxonMobil trial court (now on appeal to the Ninth Circuit) and the California v. General Motors trial court (appeal abandoned), but rejected by the Second Circuit in Connecticut v. American Electric Power. The Second Circuit likewise rejected the Connecticut defendants' petition for rehearing or rehearing en banc. Observers feel that a petition for certiorari is inevitable. Oral argument in Comer is scheduled for the week of May 24. It is sure to be interesting. If defendants prevail, the circuit court split increases the chances that climate change will lodge another appearance before the Supreme Court. For my purposes (following insurance issues), I will be watching to see if plaintiffs' premium argument is indeed a premium argument.

Climate Change | Weather | Greenhouse Gases

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