All posts tagged 'political question'

Alaska Supreme Court Opens the Door for Alternative Theory in Public Trust Litigation

September 26, 2014 08:40
by J. Wylie Donald
Co-author: Jeffrey K. Janicke As this blog has discussed on several prior occasions, Our Children&r

Climate Change | Climate Change Litigation

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)

Dismissed Means Dismissed: Comer v. Murphy Oil, the First Climate Change Liability Damages Suit, Is Tossed Again

March 22, 2012 19:14
by J. Wylie Donald
In a case of surprising longevity, Comer v Murphy Oil USA, Inc., may finally have been laid to rest. In a decision filed Tuesday, Judge Louis Guirola, Jr., Chief Judge of the United States District Court for the Southern District of Mississippi, concluded that the plaintiffs in the first climate change liability damages suit were not entitled to a second bite at the apple. And even if they were, their case still failed. In the aftermath of Hurricane Katrina, numerous parties filed scores of lawsuits seeking to find some source to pay for the awful devastation. One suit, Comer, asserted through various amended complaints that electric utilities, coal companies, chemical companies and oil companies  were responsible for the increased ferocity of Hurricane Katrina because of their emissions of greenhouse gases and their alleged resultant contribution to global warming.   Following various iterations, plaintiffs ultimately alleged:  "Prior to striking the Mississippi Gulf Coast, Hurricane Katrina had developed into a cyclonic storm of unprecedented strength and destruction, fueled and intensified by the warm waters and warm environmental conditions present in the Atlantic Ocean, Caribbean Sea, and the Gulf of Mexico.  These high sea surface temperatures, which were a direct and proximate result of the defendants' green house gas emissions, increased the intensity and magnitude of Hurricane Katrina."   Amended Complaint, 1:11-cv-00220-LG-RHW, ¶ 17.  Plaintiffs also alleged risks of future harms as a result of effects of global warming. Motions to dismiss were filed, which ultimately led to judgment in favor of the defendants. Judge Guirola ruled that plaintiffs lacked standing and that the claims were non-justiciable under the political question doctrine.  2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), Plaintiffs appealed and were initially successful before the Fifth Circuit, which reversed the district court and concluded:  "Like the district courts in [Connecticut v.] American Electric [Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005)] and [California v.] General Motors [, 2007 WL 2726871 (N.D. Cal. 2007)], the defendants begin with an assumption they cannot support, viz., that the adjudication of plaintiffs' claims will require the district court to fix and impose future emission standards upon defendants and all other emitters. Then, again in a fashion similar to those district courts, the defendants proclaim that it would be "impossible" for a court to perform such an obviously legislative or regulatory task so that the case must present a nonjusticiable political question. The defendants have failed to show how any of the issues inherent in the plaintiffs' nuisance, trespass, and negligence claims have been committed by the Constitution or federal laws "wholly and indivisibly" to a federal political branch."  Comer v. Murphy Oil USA, 585 F.3d 855, 879 (5th. Cir. 2009). That was the high water mark of the plaintiffs' bar's success in climate change liability cases. With the Second Circuit's decision in Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009), just one month earlier, the tide crested with the Fifth Circuit's decision in October.  Two federal courts of appeal had found standing for climate change liability plaintiffs, and rejected the political question doctrine.  Concurrently, however, a new climate change liability suit, Native Village of Kivalina v. ExxonMobil Corp., was dismissed at the end of September.  663 F. Supp. 2d 863 (N.D. Cal. 2009).  From the present perspective, Kivalina's dismissal marked the turning of the tide. The next dark moment for the plaintiffs occurred when the Fifth Circuit en banc accepted the appeal of Comer, automatically vacating the panel's decision. Then the en banc court's quorum dissolved, requiring the court to dismiss the appeal.  But with the panel decision already vacated, that meant the controlling law was Judge Guirola's 2007 dismissal. The Supreme Court refused to issue a mandamus order, which meant Comer was over.  It got darker.  The Supreme Court dismissed the plaintiffs' federal common law claims in American Electric Power; the gutted case was remanded to the Second Circuit (and plaintiffs ultimately dismissed voluntarily).  So as of June 2011 all the climate change liability suits had been disposed of. Well, not entirely.  Kivalina was pending on the Ninth Circuit's docket.  And the Comer plaintiffs refused to abandon the field and re-filed their claims, relying on a Mississippi statute purportedly permitting refiling. Judge Guirola, however, did not agree. Plaintiffs' claims were barred because the doctrines of res judicata and collateral estoppel applied. Slip op. at 12.   Plaintiffs had had a previous  opportunity to litigate their claims, which had been decided against them with prejudice.  Moreover, plaintiffs still lacked standing because they could not demonstrate that their alleged injuries were "fairly traceable" to the defendants' activities:  "As this Court stated in the first Comer lawsuit, the parties should not be permitted to engage in discovery that will likely cost millions of dollars, when the tenuous nature of the causation alleged is readily apparent at the pleadings stage of the litigation. The Court finds that the plaintiffs have not alleged injuries that are fairly traceable to the defendants’ conduct, and thus, the plaintiffs do not have standing to pursue this lawsuit."  Slip op. at 23.   In addition, the political question doctrine still applied:  " The Court finds that the claims presented by the plaintiffs constitute non-justiciable political questions, because there are nojudicially discoverable and manageable standards for resolving the issues presented, and because the case would require the Court to make initial policy determinations that have been entrusted to the EPA by Congress."  Slip op. at 29.   And just in case all that was not enough, Judge Guirola also ruled that 1) "the plaintiffs’ entire lawsuit is displaced by the Clean Air Act", slip op. at 30 (relying on American Electric Power); 2) the three-year statute of limitations applied to the Hurricane Katrina-based claims because the Mississippi "savings statute" did not apply, and the alleged continuing torts were not ripe, slip op. at 33; and 3) plaintiffs could not demonstrate proximate cause because "[t]he assertion that the defendants’ emissions combined over a period of decades or centuries with other natural and man-made gases to cause or strengthen a hurricane and damage personal property is precisely the type of remote, improbable, and extraordinary occurrence that is excluded from liability."  Slip op. at 35. Judge Guirola's decision is well-written and thorough.  Will it be enough? We expect so but we cannot be pollyana here.  A Fifth Circuit panel has wrestled with Judge Guirola's standing and political question analysis before, and reversed him.  This time, however, they will also need to avoid his res judicata, collateral estoppel, displacement, statute of limitations and proximate cause analyses.  That seems a tall order.  As for the the Second Circuit, its decision on standing is still valid law because that issue was not resolved by American Electric Power.  Indeed, the Supreme Court split 4-4 on the issue (Justice Sotomayor recused herself because of her participation in argument at the court of appeals).  Should Comer (or Kivalina) make it to the Court, the standing question could come out badly for the defense if Justice Sotomayor is the swing vote needed for a bare majority in favor of broader standing.  Last, we have Kivalina before the Ninth Circuit.  While undoubtedly the court will have read Judge Guirola's opinion, it will also have read the Fifth Circuit panel's decision.  Which will be more influential?  We'll make that decision then.

Carbon Dioxide | Climate Change Litigation

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

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Click here for more information and a list of our group members.

MONTH LIST

© 2017 McCarter & English, LLP. All Rights Reserved. disclaimer
navbottom image