All posts tagged 'Judge Pro'

Native Village of Kivalina Files Its Petition for Certiorari - A Five-Year Climate Change Litigation Marathon That Has Yet to Start

March 15, 2013 05:54
by J. Wylie Donald
One day short of five years since the case was originally filed, on February 25, 2013 the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. attempt once more to get out of the starting blocks, this time with a petition for certiorari  to the United States Supreme Court.  This follows dismissal by the Northern District of California in 2009, affirmance of the dismissal by the Ninth Circuit last September, and denial of a petition for rehearing en banc in November.   To be trite, it’s a marathon, not a sprint.  The response, if any, is due on April 3.  We can expect a decision on the petition a few weeks after that.  The substance of the petition was easily predicted.  The tension between Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), and mentioned by the concurrence (Judge Pro, sitting by designation on the Ninth Circuit) is the center of the argument.  Indeed it is the only issue behind the question presented:  “Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.” According to the petitioners, the starting point for the analysis is the Court’s 1981 decision in Milwaukee v. Illinois, 451 U.S. 304 (1981) (“Milwaukee II”), where Illinois sought to enjoin Milwaukee’s federally permitted Clean Water Act discharges using the federal common law of nuisance.  Petition at 7.   In rejecting Illinois’s claim, the Court “focused carefully on whether the statutory scheme ‘spoke directly’ to the plaintiff’s ‘problem,’ and whether the statute gave the plaintiff a means ‘to protect its interests.’”  Id. at 8.  The same year, however, the Court also, according to petitioners, issued Middlesex, a decision sharply diverging from Milwaukee II. In Middlesex, fishermen aggrieved by ocean dumping were found to have no federal common law remedy because “’the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope’ of the [Clean Water Act].” Id. at 10. These two threads came together 27 years later in Exxon Shipping, where the Court “departed from any broad reading of Middlesex and returned to the more pragmatic and careful analysis of Milwaukee II.”  Id. Or maybe not.  Kivalina in candor also acknowledged: To be sure, it is possible to read Middlesex narrowly so as to reconcile the decision with Exxon Shipping.  Given Exxon Shipping’s statement that Middlesex is limited to situations where “plaintiffs’ common law nuisance claims amounted to arguments for effluent-discharge standards different from those provided by the CWA,” then it appears that a federal common law damages claim is displaced only where it is so inextricably intertwined with claims for injunctive relief that it amounts to second-guessing of the prospective statutory standards.  Id. at 11-12. Petitioners tied up their arguments with reference to American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011) (“AEP”), the case that established that greenhouse gas claims were displaced by the Clean Air Act.  AEP, it was asserted, “pointedly did not follow Middlesex in concluding that the whole 'federal common law of nuisance is entirely' displaced by a 'comprehensive' regulatory scheme, which would have made for a much shorter, and very different, AEP opinion.” Petition at 12.  Instead, the gravamen of AEP was that the displaced claims were those that would have interfered with EPA’s authority.  Id. at 13. In sum, “Milwaukee II, Middlesex, Exxon Shipping and AEP cannot all be correctly decided, yet all of them are viewed as good law – a conundrum that Judge Pro acknowledged in his opinion concurring in the result and that ultimately led him, and the other members of the panel, to a result in this case that is at odds with the fundamental rationale for displacement and with basic fairness.”  Id. Stated differently, Exxon Shipping permitted common-law damages even though the Clean Water Act displaced claims for injunctive relief.  This was to be contrasted with Middlesex, which “held that  a federal common-law damages claim was displaced by the Clean Water Act.”   Id. at i.  We expect that the Kivalina defendants will have a different point of view. The second part of the petition is the analysis of why the case is so important that the Court should hear it.  Kivalina gave four reasons: 1.  Climate change is an extremely important subject.  In a pointed salvo, petitioners cited to the petition for certiorari in AEP, where some of the same defendants stated “’The questions presented by this case are recurring and of exceptional importance to the Nation.’”2. Displacement presents a fundamental question of boundaries between the legislative and judicial branches.3. GHG emissions claims are “inherently important because of the extraordinary nature of global warming.”  4. Kivalina’s very existence is at stake. Notwithstanding all that, the odds of the petition being granted are long.  The Court only accepts between 100-150 of the more than 7,000 cases it is asked to review each year.  That is less than a 2% chance, all things being equal.   Greenhouse gas emissions were on the Court’s docket in 2007 (Massachusetts v. EPA) and again in 2011 (AEP v. Connecticut).  While we agree that climate change cases are important; we are skeptical that this narrow issue (displacement of damages, when the Court has already ruled on displacement of injunctive relief) justifies a place at the finish line, marathon or no.

Climate Change Litigation | Greenhouse Gases | Sustainability

The Third Climate Change Liability Suit Fights to Stay Alive: Plaintiffs in Kivalina v. ExxonMobil Seek Rehearing

October 7, 2012 14:21
by J. Wylie Donald
The plaintiffs in the climate change liability suit, Native Village of Kivalina v. ExxonMobil, won’t go quietly.  Last Thursday, Plaintiffs filed with the Ninth Circuit Court of Appeals a petition for rehearing en banc (Petition attached), seeking to reverse the appellate panel’s decision (“Panel Decision”) that the doctrine of displacement barred the plaintiffs’ claims for nuisance damages under federal common law.  In their petition the plaintiffs focus on the panel's conclusion, based on Connecticut v. American Electric Power, that the Clean Air Act displaced all federal common law claims relating to greenhouse gas emissions, regardless of the remedy sought.  But they also weakly address the concurrence's separate reasoning finding that the plaintiffs did not have standing, and the district court's original conclusion that the political question doctrine bars the claim. For those unfamiliar with the Kivalina case, it is one of the triumvirate of cases (with Connecticut v. American Electric Power and Comer v. Murphy Oil USA) that are shaping the climate change liability legal landscape.  The plaintiffs in Kivalina assert that the defendants (electric utilities, oil companies and a coal company) are responsible for the emission of greenhouse gases that have caused the late freezing and early melting of arctic sea ice, which in turn permits arctic storms to erode the plaintiffs’ village that now lacks the sea ice’s protection.  The plaintiffs seek damages in the hundreds of millions of dollars.  The case was filed in the Northern District of California in 2007 and was dismissed in 2009; the dismissal was affirmed two weeks ago. And for those unfamiliar with en banc substance and procedure in the Ninth Circuit, it is unique.  Notwithstanding its name, an en banc hearing in the Ninth Circuit is not heard by the full court.  Instead, if 15 jurists (out of 29) vote to hear the case, ten judges are selected by lot to join the Chief Judge for the hearing.  See Fed. R. App. P. 35; Gen. Orders 9th Cir. §§ 5.1 et seq.).  If one does the math, it becomes apparent that even if a majority of the court concludes a case should come out a certain way, if six judges of an opposite mind are on the en banc panel, the law in the Ninth Circuit can vary from what the majority of the Ninth Circuit thinks the law should be. We now turn to the plaintiffs’ arguments: DISPLACEMENTPlaintiffs succinctly summarized their motion: "This case squarely presents the issue of whether a statute [e.g., the Clean Air Act] that displaces a federal common law cause of action for injunctive relief also displaces a federal common law damages action. Exxon Shipping [v. Baker, 554 U.S. 471 (2008)] answers this question in the negative and directly conflicts with the panel decision." Petition at 6.  The majority and the concurrence had ruled that, notwithstanding Exxon Shipping, Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), provided that the remedy sought had no bearing on whether a claim was displaced.  To quote:  “where a federal common law nuisance claim for injunctive relief is displaced, a federal common law nuisance claim for damages claim likewise is displaced.” Panel Decision at 11663 (citing Middlesex County). Judge Pro noted in his concurrence a tension between Exxon Shipping and Middlesex County .  He wrote that Exxon Shipping suggests  “severing rights and remedies is appropriate as between damages and injunctive relief in some circumstances.” Panel Decision at 11665.  Plaintiffs contend that here are the right circumstances:  "in Exxon Shipping, the Supreme Court unambiguously held that a federal common law damages claim is not displaced by the Clean Water Act (“CWA”) – a federal environmental statute that, like the CAA, provides only injunctive relief and civil penalties – even though the CWA does displace a federal common law claim for injunctive relief." Petition at 1.  Their reasoning basically is that injunctive relief seeks the same result as a regulatory regime, and is therefore displaced.  “[T]he common thread running throughout the displacement cases is that the federal common law cannot create a parallel track with a regulatory regime established by Congress. Thus, in AEP the displacement holding, …, was expressly limited to injunctive relief claims seeking abatement of the nuisance. ‘We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.’ Petition at 13 (citing AEP, 131 S. Ct. at 2537).  A claim for damages, on the other hand according to plaintiffs, has nothing to do with enforcement of standards.  “Kivalina does not seek to set emissions caps. It seeks damages.”  Id. at 13.  Judge Pro would disagree:  “By supplying a federal remedy Congress chose not to provide, this Court would not be “filling a gap,” it would be “providing a different regulatory scheme” than the one chosen by Congress. Panel Decision at 11671 (citation omitted). STANDINGPlaintiffs wrote:  “Judge Pro would have affirmed the dismissal for lack of standing.”  Petition at 17.  That is true, but he said it a little more forcefully:  ““[i]t is quite another [thing] to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.”  Panel Decision at 11676. Plaintiffs hardly address this point:  “Kivalina seeks damages, so redressability is easily satisfied.”  Id. at 18.  Don’t look for more analysis; there isn’t any.  Instead, there is a little sleight-of-hand.  Standing was granted to the plaintiffs in Massachusetts v. EPA to sue the federal government to enforce the Clean Air Act concerning carbon dioxide emissions.  Such standing is more difficult to achieve than standing in a simple suit for damages.  Hence, plaintiffs’ argument goes, if the plaintiffs had standing in Massachusetts, then it must be the case that plaintiffs in Kivalina have standing too.  Further, the “special assistance” provided by being a sovereign (as the Commonwealth of Massachusetts and other plaintiffs were) is not needed.  Plaintiffs are comparing apples and oranges.  A sovereign may have standing to sue another sovereign to enforce a law.  That simply has nothing to do with standing by a private party to sue another private party for damages.  POLITICAL QUESTIONThe trial court dismissed the Kivalina case on standing and also as a political question.  Plaintiffs contend that the “Supreme Court rejected the political question argument in AEP.”  We suppose that is technically correct.  A divided court affirmed 4-4 the Second Circuit’s decision rejecting application of the political question doctrine.  See AEP, 131 S. Ct. at 2535 & n.6.  But that hardly seems sufficient to convince the en banc court to permit rehearing. Likewise plaintiffs’ second argument, that a claim for damages lowers the bar for application of the political question doctrine, is barely made (five lines). Plaintiffs must be hoping that the en banc court will take up the Exxon Shipping – Middlesex County tension.  Their other arguments are insubstantial.  Regardless, it seems plain that the case is headed to a petition for certiorari to the Supreme Court.  Plaintiffs have identified a potential conflict in Supreme Court precedent.  If they lose, either because rehearing is not granted, or because rehearing is granted and the panel’s decision upheld, they have come too far to let the case go.  And if they win, defendants undoubtedly will seek a reversal by the Supreme Court, content ultimately to take their chances in state court, as we have previously suggested.     20121004 Petition for Rehearing, Kivalina v. ExxonMobil.pdf (76.64 kb)

Ninth Circuit Displaces Kivalina v. ExxonMobil Climate Change Liability Case

September 21, 2012 16:22
by J. Wylie Donald
In litigation concerning liability for the emission of greenhouse gases, the federal common law of nuisance is displaced by the Clean Air Act.  This is not news.  It was established by the Supreme Court over a year ago in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011). This morning, the Ninth Circuit Court of Appeals acknowledged the rule and applied it to the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. ("Opinion") and affirmed the dismissal by the Northern District of California.  See Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). In a nutshell, a native Alaskan village on the shores of the Chukchi Sea brought suit against electric utilities, oil companies and one coal company.  The complaint asserted the defendants are responsible for excess emissions of greenhouse gases, which have led to global warming, which has resulted in delayed formation of arctic sea ice and early melting of the ice, which has accelerated the erosion caused by winter storms.  The plaintiffs sought damages for the cost of relocating their village.  See Opinion 11648-49.  The Court of Appeals dutifully explained the federal common law of nuisance and the doctrine of displacement.  Plaintiffs had hoped to avoid the application of American Electric Power by arguing that it was a case about injunctive relief.  Kivalina was different:  the plaintiffs there sought damages.  The Court was unmoved.  It stated simply:  “under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.”  Opinion at 11655.  It did not matter that EPA had not acted before the damage was incurred; "Congressional action, not executive action, is the touchstone of displacement analysis.”  Opinion at 11656.  Nor did it matter that the Court’s decision would be applied retroactively.  Id.  The concurrence (Judge Pro of the District of Nevada, sitting by designation) was not as unequivocal as the Court, and explicated a tension between the Supreme Court’s rulings in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1, 4 (1981), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).  Middlesex expressly stated that “where a federal common law nuisance claim for injunctive relief is displaced, a federal common law nuisance claim for damages claim likewise is displaced”, but, according to Judge Pro, Exxon’s “overall holding suggests that severing rights and remedies is appropriate as between damages and injunctive relief in some circumstances.” Opinion at 11663, 11665. In the end, however, Judge Pro agreed that the doctrine of displacement shuts the door on federal common law claims for nuisances allegedly caused by greenhouse gas emissions whatever remedy is sought. More interesting and of more moment we think are two points made by the concurrence; the first will give heart to greenhouse gas plaintiffs, while the second may empty their sails. Judge Pro acknowledged that the Supreme Court’s decision and the 9th Circuit’s decision did nothing to affect the plaintiffs’ state law nuisance claims.  He wrote: Once federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law. AEP, 131 S. Ct. at 2540 (“In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act.”). The district court below dismissed Kivalina’s state law nuisance claim without prejudice to refiling it in state court, and Kivalina may pursue whatever remedies it may have under state law to the extent their claims are not preempted.  Opinion at 11671. We predicted this next phase when the case was argued back in November of last year.  Accordingly, the Kivalina case is not dead yet. However, judicial skepticism of climate change plaintiffs’ current liability theories is expanding.  Judge Guirola, in Comer v. Murphy Oil USA Inc in the Southern District of Mississippi, was dubious of the causation story:  “the tenuous nature of the causation alleged is readily apparent at the pleadings stage.”  Judge Pro went one further: Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.  Opinion at 11675.  To be sure, the Supreme Court approved an action by various States to challenge EPA’s failure to regulate greenhouse gases.  See Massachusetts v. EPA, 549 U.S. 497 (2007).  But “[i]t is quite another [thing] to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.”  Opinion at 11676. Judge Pro would have dismissed the case on standing grounds as well. Finally, notwithstanding our foresight above, it is rarely worth getting out the crystal ball to predict the outcome of a case or cases.  If we could do that with any reliability, we wouldn’t be sitting at this keyboard.  So rather than a prediction, we think offering some context is appropriate.  Will states be receptive to climate change liability suits as currently cast?  We are skeptical.  The environmental organization, Our Children’s Trust, orchestrated over a dozen lawsuits seeking to force state regulators to address greenhouse gas emissions.  With only one exception (New Mexico), those cases have been dismissed in jurisdiction after jurisdiction (Alaska, Arizona, Colorado. Minnesota, Montana, Oregon, Texas, Washington and the District of Columbia).  And even in the case that is moving forward, all the court permitted was an action to pursue whatever recourse was in place under current law, which is no more than the Supreme Court ruled in Massachusetts v. EPA. 

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