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Stephen Keim
5 November, 2009  
Climate litigation hots up

Global warming can be a real nuisance … US appeal courts open the way for injunctions and damages against big CO2 emitters … Global warming is not only a political issue … The common law gets into the act … Stephen Keim reports

imageWhile Congress hesitates to endorse President Barak Obama’s cap and trade scheme to mitigate climate change, the States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin and the City of New York have turned to the law of nuisance.

They are all seeking injunctive relief against big greenhouse gas emitting power companies – American Electric Power, American Electric Power Service Corporation, the Tennessee Valley Authority (who has, since the 1930s moved beyond grand hydro schemes to a grand use of coal), Excel Energy and Cinergy Corporation.

In other litigation, three land owning conservation trusts have sued the same power utilities.

The pleadings in the cases alleged that the five defendants are the “five largest emitters of carbon dioxide in the United States”.

On September 21, this year, the Second Appeals Circuit handed down a decision that will greatly encourage those who think litigation may yet be an effective weapon in forcing US electricity generators to look beyond the continued use of coal.

The decision of Justices Joseph M. McLaughlin and Peter W. Hall, both appointed by Republican Presidents, occurred after the third justice on the panel, Sonia Sotomayor, had been appointed to the US Supreme Court.

The decision overruled a decision made in the court below that the claim for nuisance involved a political question, which was not justiciable in the courts.

The decision is particularly important because the panel went on to consider a number of other possible objections to the claim by the States, the City of New York and the Conservation Trusts and decided for the plaintiffs on each of those matters.

Because the original ruling was on a motion that the action be dismissed on a summary basis, the rulings in the Second Circuit are premised on an acceptance of the facts alleged by the plaintiffs.

For that reason, the decision is only a limited guide to what might happen on a full trial of the claims.

The decision may also be further tested in the Supreme Court.

However, the decision on a number of crucial legal questions is an important boost for the plaintiffs’ chances in the case.

Among the injuries claimed to be contributed to by the greenhouse emissions of the defendants is the reduction of California’s snow pack, an important water source for the State during that time of the year when little rain falls.

More generally, the plaintiffs complained of “increased illnesses and death caused by intensified and prolonged heatwaves; increased smog, with a concomitant increase in residents’ respiratory problems; significant beach erosion; accelerated sea level rise and the subsequent inundation of coastal land and damage to coastal infrastructure; salinization of marshes and water supplies; lowered Great Lakes water levels and impaired shipping, recreational use and hydropower generation; more droughts and floods, resulting in property damage; increased wildfires particularly in California; and the widespread disruption of ecosystems, which would seriously arm hardwood forests and reduce biodiversity.”

The Federal District Court found that the case should be dismissed because it raised a non-justiciable political question.

This was argued and decided on appeal by applying a six point test laid down by Justice William J. Brennan in the 1962 Supreme Court malapportionment case of Baker v Carr.

The defendants sought to characterise the court’s decision as having to lay down broad policy on the question of reducing greenhouse emissions, a task which was the work of the legislature.

They also sought to characterise Congress’s actions to this point of having conducted inquiries, but not having legislated, as a clear policy decision that no action should take place.

Ultimately the Appeals Court regarded the lack of legislative action as leaving a large space in which the doctrines of nuisance and equity could operate.

It drew guidance from previous cases, which had considered claims between states concerning pollution from one state travelling down river and impacting on activities in the downstream state.

One question not dealt with below involved arguments on standing.

imageThe Appeal Court held, using two quite different analyses that both the States and City of New York, on the one hand, and the Conservation Trusts, on the other, had standing to sue.

Two subsidiary issues that arose on a consideration of the standing issue were causation and redressability.

On causation, the court held that it was sufficient if it were alleged that the defendants were contributors to the damage complained of.

On redressability, the court said that a party who contributes to actionable damage could be restrained from continuing to make that contribution to the damage.

The court also considered whether the claims fell under what is called the Federal Common Law of Nuisance, which was important because the claims were being litigated in the Federal Courts system.

This quite technical issue, from an Australian perspective, was also decided in favour of the plaintiffs.

The decision on this question also required consideration whether the law of nuisance had been abrogated by federal legislation in the field of activity which was said to constitute the nuisance. This called for examination of the Clean Air Act and regulations passed by the Environmental Protection Agency under that Act.

Not surprisingly, the court held that the attempts to regulate greenhouse emissions had not reached a point where the common law remedy of nuisance had been excluded from the area.

Twenty-five days after the decision in Connecticut v American Power, on October 16, the Fifth Appeals Circuit delivered its decision in a class action brought by individuals and corporations (“residents and owners of land along the Mississippi Gulf Coast”) adversely impacted by Hurricane Katrina against defendants who were operators of “energy, fossil fuels and chemical industries in the United States”.

In this case of Ned Comer et al v Murphy Oil USA et al, the court consisting of Justices W. Eugene Davis, Carl E. Stewart and James L. Dennis held that the plaintiffs had standing to assert claims for public and private nuisance, trespass and negligence and also held that none of these claims constituted non-justiciable political questions.

The court stated that it had come to its conclusion independently of the decision in Connecticut v AEP. However, they considered that their reasoning was consistent with that of the Second Circuit.

Comer v Murphy Oil involved claims based on state rather than federal common law of nuisance and involved monetary compensation rather than injunctive relief to reduce emissions.

The two decisions have the potential to be very significant in climate change law.

Although the international and national political systems show some willingness to address the threat of climate change, one can have little confidence at this stage that effective legislative action will occur within the next five years.

Perhaps, it will be the court system that produces changed behaviour among the grand emitters, both through the exercise of injunctive remedies and through the threat of damages.

This, in turn, could stimulate the political arm of government to take up the cudgels.

The decisions might also be influential concerning the direction to be taken by climate law litigation in Australia.

Up to now, conservation groups, often assisted by community legal centres such as the Environmental Defenders’ Offices, have concentrated on administrative law actions challenging government approval decisions for failing to take into account the climate change impacts of coal mines or other developments.

While raising public awareness of the lack of climate change awareness among government decision makers, such cases, even when successful, have often led to the same decisions being made with the decision makers’ purporting to give consideration to climate change issues.

Perhaps, the future of such litigation in Australia will involve big firms, such as Maurice Blackburn and Slater & Gordon bringing class actions on behalf of bushfire and coastal erosion victims against large Australian and overseas emitters.

Stephen Keim SC
Eagle Junction