All posts tagged 'climate change liability'

Fifth Circuit Knocks Out Climate Change Liability Lawsuit Again

May 15, 2013 21:10
by J. Wylie Donald
Res judicata is one of those phrases learned in law school that seemed of limited utility. How often is someone going to bring the same claim twice?  Callow law students know little of the world.  The doctrine is frequently needed and, as was learned in law school, it can be used to dispose of a claim, even if the prior decision "may have been wrong or rested on a legal principle subsequently overruled in another case."  Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). On Tuesday, the Fifth Circuit applied the hoary doctrine to snuff out (again) the seven-year old climate change liability saga of Comer v. Murphy Oil USA.  Comer was filed immediately following Hurricane Katrina and asserted that a long list of energy companies were responsible for the increased destructiveness of the hurricane because of their emissions of greenhouse gases.  The trial court disagreed and dismissed the case on standing and political question grounds.  On appeal, however, the plaintiffs convinced an appellate panel of the Fifth Circuit  to reverse the trial court.  Defendants asked for rehearing en banc, which was granted, resulting in the vacating of the panel decision pursuant to court rule.  Then things got weird.  After the grant of en banc review, the en banc quorum then dissolved with an eighth recusal among the active judges.  With no quorum, the case could not be reviewed.  Because the panel decision was vacated, the trial court dismissal was valid. Plaintiffs chose not to appeal to the Supreme Court.  Instead they sought mandamus, which was denied.  Plaintiffs then decided to file their claim again, not only by the same plaintiffs on the same theories, but against the same defendants.  The trial court had no difficulty dismissing their claims a second time, relying on res judicata, but also on the statute of limitations, the political question doctrine, preemption, proximate cause and standing.  Another appeal was filed; this time the panel did not side with the plaintiffs.  Instead, it ignored all of the bases for dismissal articulated by the trial court and settled on only one:  res judicata. To apply, four elements must exist: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. Opinion at 7.  Only the third element was disputed.  The court held that the trial court's first judgment was a final judgment because, although the panel reversed, that decision was vacated and thus had no effect on the trial court's decision.  Nor did the decision to grant rehearing en banc, nor the Supreme Court's denial of the mandamus motion.  And the trial court's decision was on the merits, notwithstanding that it was a jurisdictional (standing and political question) determination.  Opinion at 10.  Accordingly, res judicata applied; the dismissal was affirmed. We expect that the precedential value of the court's decision will be limited.  However, its non-precedential value is huge.  A broad and expansive theory of climate change liability was asserted by well-funded and capable plaintiffs' counsel.  After a long journey it joined on the ash heap claims asserted by the State of California (California ex rel. Lockyer v. General Motors), claims by various attorneys general and public interest groups (Connecticut v. American Electric Power), and claims asserted by a Native American community (Kivalina v. ExxonMobil) (albeit nursing a petition for certiorari to the Supreme Court).  Petrochemical companies, automobile companies, coal companies and electric utilities are 4-0 on the climate change liability front, with no other cases out there.  The unanswered questions from Comer are the following:  Why didn't plaintiffs add new defendants?Why didn't plaintiffs assert state law nuisance claims in state court rather than pursue them in federal court?  Why didn't they appeal to the Supreme Court on the merits, rather than seek mandamus?  These questions are decisions on strategy, and we likely will never know. Last, however, and most importantly, where are the new theories of liability?  Bueller?  Bueller?  

Climate Change Litigation | Supreme Court | Utilities

Oral Argument is April 19 in American Electric Power v. Connecticut and in AES Corp. v. Steadfast Insurance Co.

April 5, 2011 21:09
by J. Wylie Donald
Where I grew up (outside of Boston) April 19 is of singular moment. On that day, over 200 years ago, the British marched from Boston to destroy the military stores in Concord. But Paul Revere and William Dawes got the word out first and the Minutemen gathered at the Old North Bridge, stood their ground and then chased the British back to Boston. The locals celebrate by "marching to Concord" every year to witness the reenactment. April 19 this year also has significance, but the action will not be "by the rude bridge that arched the flood."  Rather, readers of this blog will be focused on two Supreme Courts - one in Washington and the other in Richmond. On the docket?  Two climate change cases. In Washington, the U.S. Supreme Court will hear oral argument in American Electric Power v. Connecticut.  This case is the bellwether for climate change liability suits and will test whether public nuisance under federal common law provides a viable theory for shifting damages arising from climate change to carbon dioxide emitters. Almost four dozen amicus briefs have been filed and where the Court will land is anybody's guess. EPA is attempting to regulate carbon dioxide using the Clean Air Act but other lawsuits and Congress challenge that effort. Will that eviscerate the argument that carbon dioxide regulation has been committed to the political branches of the federal government?  Does the fact that the case was brought by state attorneys general prima facie establish that this case is all about a robust federalism?  We hope to have a better inkling on where the Court will land after we hear the oral argument. Across the Potomac and several miles down the road, the Virginia Supreme Court is hearing AES Corp. v. Steadfast Insurance Co. on the very same day.  (It seems too unlikely to be a coincidence.  Readers will remember that Stop the Beach Replenishment, Inc. was heard the same day the New Jersey Supreme Court took argument on City of Long Branch, both beach replenishment cases, see climatelawyers.com).  That case tests whether there will be insurance coverage under general liability policies for carbon dioxide liability. The insurer filed the case as a declaratory judgment action disclaiming coverage for one of the utilities sued in Native Village of Kivalina v. ExxonMobil Corp.  The trial court, in the briefest of opinions, held that because "no 'occurrence' as defined in the policies [was] alleged in the underlying Complaint," there was therefore no coverage. AES appealed directly to the Virginia Supreme Court, which granted certification.  Before the court are arguments about the scope of an "occurrence", but also over whether a pollution exclusion applies, even though the trial court rendered no opinion on that topic.  The implications of a decision are potentially colossal, especially if the U.S. Supreme Court permits Connecticut to move forward. Steadfast is the first climate change liability coverage suit and, to our knowledge, not a single climate change liability defendant has been defended by its insurer in any of the three damages cases (Comer v. Murphy Oil, California v. General Motors, Kivalina). Two hundred years ago on April 19th was fired the "shot heard round the world."  The metaphor is not perfect but this month on the same day similarly significant salvos will be set off in the climate change liability and coverage wars. Stay tuned. 20100205 Order for Summary Judgment for Steadfast against AES.pdf (120.02 kb)

Carbon Dioxide | Climate Change Litigation | Supreme Court | Utilities

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