Applying Fairness Principles in Climate Change Nuisance Litigation

Abstract

The tort of public nuisance has been used in two recent climate change cases, Connecticut v. American Electric Power Co. and Comer v. Murphy Oil, USA, to single out a handful of American companies with deep pockets and hold those companies liable for global climate change. This article examines why these suits contravene judicially established procedural and substantive safeguards—including “but for” causation, proximate causation, remediability, and liability allocation—that are meant to ensure that when the judicial system holds a defendant liable, it is fundamentally fair to the defendant to do so.

Notes

Article III of the U.S. Constitution limits the federal courts’ judicial power to “cases” and “controversies.” See U.S. Constitution, Art. III section 2. The Supreme Court has interpreted this language to require that litigants have “standing” to invoke the power of a federal court, which requires that the plaintiff “allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).

Connecticut v. American Electric Power Co., 582 F.3d 209 (2d Cir. 2009) (AEP); Comer v. Murphy Oil, USA, 585 F.3d 855 (5th Cir. 2009) (Comer).

See, e.g., Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report (2007) (IPCC Fourth Assessment Report); United Nations Framework Convention on Climate Change, National Greenhouse Gas Inventory Data for the Period 1990–2007 (Oct. 21, 2009); “China Overtakes U.S. in Greenhouse Emissions,” New York Times, June 20, 2007, http://www.nytimes.com/2007/06/20/business/worldbusiness/20iht-emit.1.6227564.html; “Factbox: The World's Top 25 Greenhouse Gas Emitters,” Reuters, November 25, 2008, http://www.reuters.com/article/idUSTRE4AO4LJ20081125.

See Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (AEP I); Comer v. Murphy Oil, USA, No. 05-cv-436, slip op. (S.D. Miss. Aug. 30, 2007) (Comer I); California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007).

National Oceanic and Atmospheric Administration, National Weather Service, “Climate Change” Oct. 2007, 1, http://www.nws.noaa.gov/os/brochures/climate/Climatechange.pdf.

Id.; see also IPCC Fourth Assessment Report: 30–33.

Id., 39; see also id., 27 (explaining term “very likely”).

Id., 37.

Id.

Id.

See U.S. Environmental Protection Agency, Human Related Sources and Sinks of Carbon Dioxide, http://www.epa.gov/climatechange/emissions/co2_human.html.

See U.S. Environmental Protection Agency, Methane: Sources and Emissions, http://www.epa.gov/methane/sources.html.

See U.S. Environmental Protection Agency, Nitrous Oxide: Sources and Emissions, http://www.epa.gov/nitrousoxide/sources.html; “Urban ‘Green’ Spaces May Contribute to Global Warming,” Science Daily, January 22, 2010 (http://www.sciencedaily.com/releases/2010/01/100119133515.htm).

See United Nations Statistics Division, Millennium Development Goals Indicators, Carbon Dioxide Emissions (CO₂), Thousand Metric Tons of CO₂ (CDIAC), http://mdgs.un.org/unsd/mdg/SeriesDetail.aspx?srid = 749&crid=.

See Congressional Research Service, CRS Report for Congress, “Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations,” November 28, 2008.

See, e.g., United States Senate Report, United States Senate Committee on Environment and Public Works, Minority Staff, “Consensus’ Exposed: The CRU Controversy,” February 2010 (stating that certain e-mails and documents from the Climatic Research Unit “seriously compromise the [Intergovernmental Panel on Climate Change]-backed ‘consensus’ and its central conclusion that anthropogenic emissions are inexorably leading to environmental catastrophes”); Beth Daley, “After Errors, Global Warming Gets a Cold Shoulder,” Boston Globe, March 8, 2010; Robert Redfearn Jr., “Global Warming Litigation Just Getting Started; Costs Will Be Significant,” Insurance Journal, March 4, 2010.

See, e.g., Complaint, Connecticut v. American Electric Power Co., Inc., No. 04-5669; ¶ ¶80, 92 & Ex. 3 (S.D.N.Y. filed July 21, 2004) (citing IPCC 2001 assessment report); Jeffrey Ball and Keith Johnson, “Push to Oversimplify at Climate Panel,” Wall Street Journal, February 28, 2010 (noting concerns that the IPCC 2001 assessment report oversimplified data and that the chart included as Exhibit 3 to the Connecticut complaint may have been misleading due to oversimplification of data).

See, e.g., Third Amended Class Action Complaint, Comer v. Murphy Oil, USA, No. 05-436: 12 n.13 (S.D. Miss. filed April 18, 2006) (Comer Complaint) (“It is also evident Article III resolution is the only viable choice here as the branches of government authorized by Articles I and II of the U.S. Constitution have refused to act. …”).

See Restatement (Second) of Torts § 821B(1).

See John Gray, “Public Nuisance: A Historical Perspective,” NuisanceLaw.com (http://www.nuisancelaw.com/learn/historical).

See Donald G. Gifford, “Public Nuisance As A Mass Products Liability Tort,” University of Cincinnati Law Review 71 (Spring 2003): 741, 747, 753–63.

See, e.g., City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002); Camden County Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001). See also Gifford, supra note 21: 764–74.

See, e.g., State v. Lead Industries Association, Inc., 951 A.2d 428 (R.I. 2008); see also Donna L. Wilson and Marla H. Kanemitsu, “Public Nuisance: A New Battleground for Policyholders and Insurers,” Risk & Insurance, April 1, 2008.

See Open Space Institute, Inc. v. American Electric Power Co., Inc., No. 04-5670 (S.D.N.Y. filed July 21, 2004); Connecticut v. American Electric Power Co., Inc., No. 04-5669 (S.D.N.Y. filed July 21, 2004); Comer v. Murphy Oil, USA, No. 05-436 (S.D. Miss. filed Apr. 18, 2006); California v. General Motors Corp., No. 06-05755 (N.D. Cal. filed Oct. 24, 2006); Native Village of Kivalina v. ExxonMobil Corp., No. 08-1138 (N.D. Cal. filed Feb. 26, 2008). The Open Space and AEP suits were consolidated shortly after filing.

See, e.g., Complaint, Native Village of Kivalina v. ExxonMobil Corp., No. 08-1138: 62, 64 (N.D. Cal. filed Feb. 26, 2008); Complaint, Connecticut v. American Electric Power Co., Inc., No. 04-5669: ¶¶ 152–86 (S.D.N.Y. filed July 21, 2004); Comer Complaint: ¶¶ 28–30; Second Amended Complaint, California v. General Motors Corp., No. 06-5755: ¶¶ 58–70 (N.D. Cal. filed Oct. 24, 2006).

AEP Complaint, ¶¶ 153–54.

See AEP Complaint: ¶¶ 1–2. The AEP action was consolidated with another suit, Open Space Institute, Inc. v. American Electric Power, Inc., No. 05-5119 (S.D.N.Y. filed July 21, 2004). The plaintiffs in Open Space were two private land trusts, who asserted similar claims and sought similar relief as the plaintiffs in AEP.

See AEP, 582 F.3d: 318.

See Comer Complaint: 2.

See id., ¶¶ 3–15, 40–47.

See id., ¶¶ 19, 40–47.

AEP I, 406 F. Supp. 2d 265.

Id., 267.

Id., 272–73 (internal citations omitted).

Id., 272 (quoting Vieth v. Jubelirer, 541 U.S. 267, 278 (2004)).

Id., 274 (citing Vieth, 541 U.S.: 278)).

Id.

As the court in California v. General Motors explained in dismissing that suit on “political question” grounds:

[T]he Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government. A judicial determination of monetary damages for Plaintiff's global warming nuisance tort would improperly place this Court into precisely the geopolitical debate more properly assigned to the coordinate branches. … Because a comprehensive global warming solution must be achieved by a broad array of domestic and international measures that are yet undefined, it would be premature and inappropriate for this Court to wade into this type of policy-making determination before the elected branches have done so.

No. 06-05755, 2007 WL 2726871, *10 (N.D. Cal. Sept. 17, 2007).

By the beginning of 2009, decisions on motions to dismiss had been issued in AEP, Comer, and General Motors. Motions to dismiss the Kivalina action were filed in summer 2008 but were not decided until September 30, 2009.

The district court decision in General Motors was initially appealed to the Ninth Circuit Court of Appeals, but the appeal was voluntarily dismissed by the State of California in June 2009.

AEP, 582 F.3d: 309.

Id.

Id., 325.

Id.

Id. (emphasis in original).

Id., 326, 329.

AEP, 582 F. 3d: 352.

See id., 349–53.

See id., 352. This interpretation of public nuisance is broader than the law in at least some states. For example, Rhode Island and New Jersey law requires an additional element—the defendant must have “control over the instrumentality alleged to have created the nuisance when the damages occurred”—which poses a substantial hurdle in many nuisance claims. See, e.g., Rhode Island v. Lead Industries Association, Inc., 951 A. 2d 428, 446 (2008).

Id. (citing In re StarLink Corn Prods. Liab. Litig., 212 F. Supp. 2d 828, 848 (N.D. Ill. 2002), for the proposition that “[t]he Restatement sweeps broadly in defining a ‘public right’”).

Id., 392.

Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). The Kivalina suit is the most recent of all the climate change nuisance suits. Filed in February 2008, the action was brought by the Native Village and City of Kivalina, which is located on a barrier reef on the Northwest coast of Alaska. See Kivalina Complaint: 1. The plaintiffs allege that climate change has caused the melting of the Arctic sea ice that protected the village from winter storms. Id., 1. As a result, the storms have battered the coastline, causing land erosion that threatens the village's homes, buildings, and infrastructure. Id., 2. The Kivalina plaintiffs named twenty-four oil, power, and coal companies as defendants.

Kivalina, 663 F. Supp. 2d: 875.

Comer, 585 F.3d 855.

Id., 880.

Id., 869.

Id., 872.

Id., 875–76.

Id., 880.

Id.

See Order Granting Petition for Rehearing En Banc, Comer v. Murphy Oil, USA, No. 07-60756 (5th Cir. filed Feb. 26, 2010).

See Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490 (9th Cir.).

See David W. Robertson, “Causation in the Restatement (Third) of Torts: Three Arguable Mistakes,” Wake Forest Law Review 44 (Winter 2009): 1007, 1008 (“Indeed, it has long been regarded as a truism that ‘a defendant should never be held liable to a plaintiff for a loss where it appears that his wrong did not contribute to it, and no policy or moral consideration can be strong enough to warrant the imposition of liability in such [a] case.’”) (quoting Charles E. Carpenter, “Concurrent Causation,” University of Pennsylvania Law Review 83 (1935): 941, 947).

See Robertson, supra note 63: 1008–09.

See id., 1011–18.

See W. Page Keeton et al., Prosser and Keeton on the Law of Torts (5th ed. 1984), § 41: 266–67.

See Robertson, supra note 63, 1018 (citing Richard W. Wright, “Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, Vanderbilt Law Review 54 (2001): 1071, 1098).

See id.; Robertson, supra note 63: 1020 (discussing Prosser & Keeton on the Law of Torts § 41).

See Warren v. Parkhurst, 92 N.Y.S.725 (Sup. Ct. 1904), aff’d, 78 N.E. 579 (N.Y. 1906).

Id., 725.

See id., 727.

Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 713 (1995) (J. O’Connor concurring).

David G. Owen, “Figuring Foreseeability,” Wake Forest Law Review 44 (Winter 2009): 1277, 1293.

Id.

State ex rel. Vincent v. Fairbanks Memorial Hospital, 862 P.2d 847, 851 n.8 (Alaska 1993) (quoting Jeremiah Smith, “Legal Cause in Actions of Tort,” Harvard Law Review 25 (1911): 103, 112).

See Comer Complaint: ¶¶ 3–15.

It does not appear that the defendants in the AEP litigation raised proximate cause in their motion to dismiss briefs. See, e.g., Mem. of Law in Support of Defendants’ Motions to Dismiss the Complaints for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted, Connecticut v. American Electric Power Co., Inc., No. 104CV05670 (S.D.N.Y. filed Sept. 30, 2004). The defendants in the Comer suit did apparently raise proximate causation as a defense, and the defendants in the Kivalina suit argued both “causation-in-fact” and proximate causation as grounds for dismissing the plaintiffs’ complaint. See Comer, 585 F.3d: 880 (noting that defendants had argued to the district court that the plaintiffs failed to establish proximate causation); Notice of Motion and Motion of Certain Oil Company Defendants to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P. 12(b)(6); Memorandum of Points and Authorities, Native Village of Kivalina v. ExxonMobil Corp., No. C 08-01138, 2008 WL 2675873: 9–11 (N.D. Cal. filed June 30, 2008).

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

Twombly, 550 U.S.: 570; Iqbal, 129 S.Ct.: 1949.

Twombly, 550 U.S.: 562.

See, e.g., Comer Complaint: ¶ 6. Here, the Comer plaintiffs argued that Defendants’ emissions have “effectively doubl[ed] the frequency of category four and five hurricanes over the past thirty years.” However, that assertion does not support the contention that all category four and five hurricanes, or that Hurricane Katrina specifically, would not have occurred absent the Defendants’ emissions.

Kivalina, 663 F. Supp. 2d: 880–81 (internal citation omitted).

Kivalina, 663 F. Supp. 2d: 863.

Id., 877 (citing Bennett v. Spear, 520 U.S. 154, 167 (1997)); see also id. (“‘To show causation, the plaintiff must demonstrate 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, and not the result of the independent action of some third party not before the court.’”) (quoting Salmon Spawning & Recovery Alliance v. Gutierez, 545 F.3d 1220, 1227 (9th Cir. 2008)) (additional citation omitted).

See Comer, 585 F.3d: 880.

See id. (“[T]he defendants argued to the district court that the plaintiffs failed to allege facts that could establish that the defendant's actions were a proximate cause of the plaintiffs’ alleged injuries. If it were up to me, I would affirm the district court on this alternative ground.”).

See Richard O. Faulk and John S. Gray, “Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation,” Michigan State Law Review 2007 (Winter 2007): 941, 948 (“To stop public nuisances, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.”).

Brief for Defendants-Appellees Cinergy Corp. and Xcel Energy, Inc., Connecticut v. American Electric Power Co., Inc., No. 05-5104-CV (2d Cir. filed Feb. 20, 2006) (internal citations omitted). The AEP plaintiffs did little to contradict the defendants’ assertion in their response, claiming only that “the harmful consequences of global warming can be avoided or mitigated by reducing [carbon dioxide] emissions” and that reducing the defendants’ emissions “will contribute to the reduction in the risk and threat of injury.” Brief for Plaintiffs-Appellants, Connecticut v. American Electric Power Co., Inc., No. 05-5104CV (2d Cir. filed Dec. 16, 2005) (citations omitted).

See AEP, 582 F.3d: 317.

See, e.g., IPCC Fourth Assessment Report: 65 (noting a “high confidence that neither adaptation nor mitigation alone can avoid all climate change impacts” and that “[a]daptation is necessary both in the short term and longer term to address impacts resulting from the warming that would occur even for the lowest stabilization scenarios assessed”); id., 66 (explaining that stabilization of greenhouse gas levels could take decades, and even after stabilization, global temperatures could increase for a further “few decades,” and small increases in temperatures could persist for “several centuries”).

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 43 (1976)).

Fulani v. League of Women Voters Education Fund, 882 F.2d 621, 628 n.6 (2d Cir. 1989).

Brief for Plaintiffs-Appellants, Connecticut v. American Electric Power Co., Inc., No. 05-5104CV (2d Cir. filed Dec. 16, 2005) (emphasis added).

AEP Complaint: ¶ 148 (emphasis added).

AEP, 582 F.3d: 347–49.

Id., 348 (quoting Massachusetts v. E.P.A., 549 U.S. 497 (2007) (Massachusetts) (emphasis in original).

Massachusetts v. E.P.A., 415 F.3d 50, 54 (D.C. Cir. 2005) (Massachusets I).

Id.

Id., 54–55.

See Massachusetts, 549 U.S.: 524.

See Comer Complaint, 23–24; Kivalina Complaint, 67. Although the Comer complaint does not expressly state that the plaintiffs seek to impose joint and several liability, the complaint is geared towards that remedy.

See Robertson, supra note 63: 1014.

See Richard W. Wright, “Liability for Possible Wrongs: Causation, Statistical Probability, and the Burden of Proof,” Loyola of Los Angeles Law Review 41 (Summer 2008): 1295 (discussing Summers v. Tice, 199 P.2d 1 (Cal. 1948)).

See id.

Richard A. Epstein, “Regulation—and Contract—in Environmental Law,” West Virginia Law Review 93 (1991): 859, 871.

See Restatement (Third) of Torts § 19, comment d (2010).

See, e.g., Note, Kirk B. Maag, “Climate Change Litigation: Drawing Lines to Avoid Strict, Joint, and Several Liability,” Georgetown Law Journal 98 (November 2009): 185, 207.

John E. Heintz is a partner at Kelley Drye & Warren LLP in Washington, D.C., where he heads the firm's Insurance Recovery and DC Litigation Groups, and specializes in corporate insurance coverage and other complex multiparty litigation. Marla H. Kanemitsu is special counsel in Kelley Drye's Chicago, Illinois office, where she specializes in insurance recovery and complex litigation. Cameron Argetsinger and Elizabeth Johnson are associates in the Kelley Drye Insurance Recovery and Litigation Groups in Washington, D.C.