All posts tagged 'Public Nuisance'

Supreme Court Denies Petition for Mandamus in Comer

January 10, 2011 09:59
by J. Wylie Donald
It does not get much more anti-climactic.  The Supreme Court today rejected the Comer v. Murphy Oil plaintiffs' request for a writ of mandamus.  It took only a short seven words to relegate the petition (as well as others) to the dustbin:  "The petitions for writs of mandamus are denied."  So ends a saga that was initiated with Hurrican Katrina, expressed in a complaint, dismissed under the political question doctrine, reversed by the Fifth Circuit, accepted for en banc review, reinstated as dismissed when the Fifth Circuit's quorum dissolved, and ultimately ended up on the Supreme Court's docket.  Then it ended, not with a bang, nor even a whimper.     The questions as framed by the plaintiffs were thoughtful:     Where the litigants have perfected a right to an appeal under 28 U.S.C. § 1291, does the Circuit Court have a duty to render a decision?     When an en banc court loses its quorum after granting rehearing but before hearing argument en banc, can the remaining judges dismiss an appeal of right without a decision on the merits?     When an en banc court loses its quorum before deciding an appeal on rehearing en banc, does the    original panel maintain control over the case? I will be frank, I don't have a clue about the answers to these meaty questions (and I suspect there will be a few law review notes and articles attempting to intuit one).  But I do have some thoughts on the significance of this ruling with respect to climate change litigation. First, it was an expensive defeat for the plaintiffs' bar.  Gerald Maples, lead counsel for the plaintiffs, estimated he had spent $3 million on the case even before the en banc and Supreme Court appeals.  (Maples Australian Interview).  I assume that even for the plaintiffs' bar, $3 million is not chump change.  While tobacco litigation required numerous attempts before plaintiffs finally beat Big Tobacco, tobacco plaintiffs never had to contend with problems of causation anywhere near the complexity faced by climate change plaintiffs.  As stated by the district court in Comer:     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 gasses; 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 gasses, to global warming; and the extent to which the emission of greenhouse gasses 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. Feb. 23, 2006). Conversely, however, plaintiffs' counsel may be encouraged notwithstanding the loss in Comer.  There are presently two appellate decisions on the merits on public nuisance climate change cases, Connecticut v. American Electric Power and Comer; both come out for the plaintiffs.  As we wrote in December, with the retirements of Justices Stevens and Souter, and the recusal of Justice Sotomayor, a 4-4 stalemate at the Supreme Court in Connecticut is a distinct possibility.  That, coupled with the panel decision in Comer, could send a message that climate change liability cases are worth bringing.  In that case, we will certainly see more such cases. Second, the Tennessee Valley Authority is batting 1.000 in climate change appeals.  TVA filed papers supporting the petition for certiorari in Connecticut.  The Court accepted the petition.  And TVA opposed the request for mandamus in Comer, which was denied.  The same of course could be said of several other utlities in both litigations.  The difference being that when TVA speaks on the political question doctrine, it is the government itself asserting that it wishes to address climate change through the political process rather than through the courts.  In the appeal of Native Village of Kivalina v. ExxonMobil, TVA did not join as an amicus.  Instead, the defendants drew the support of two Congressmen:  Lamar Smith, the Ranking Republican Member of the House Judiciary Committee, and James Sensenbrenner, Jr., the Ranking Republican of the Select Committee on Energy Independence and Global Warming.  (Kivalina Amicus Brief) Let us hope that the 50 years of congressional experience between them gives them some sway with the Ninth Circuit. Last, can we read the tea leaves in Connecticut through the Comer lens?  The blogosphere is particularly harsh on the Fifth Circuit for its failure to solve its quorum problem.  Suggested solutions include bringing in a district court judge or a jurist from another circuit.  Instead, based on procedure the court nullified the case's only appellate merits ruling.  That seems a particularly harsh result on a topic of such significance, but it is only so if the Court affirms the Second Circuit and permits the appellate decision in Connecticut to survive. Is the rejection of Comer then, a case of precognition applicable to Connecticut?  By June we will have found out.

Climate Change | Climate Change Litigation | Supreme Court

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

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