September 3, 2010

Perfect storm ascends on Washington as climate change litigation rises

By Perfect storm ascends on Washington as climate change litigation rises

Author:  Luke A. Wake

As Hurricane Earl ascends upon the east coast, a perfect storm of litigation is ascending upon the Supreme Court. The storm began five years ago when Hurricane Katrina slammed into New Orleans, flooding the city and causing tremendous damage to many people's property. In the aftermath of that storm, environmental activists initiated a suit against major energy companies, alleging that they had unreasonably emitted green house gases into the atmosphere, causing climate change and somehow intensifying the destructive forces of Katrina.

Hurricane

That suit – Comer v. Murphy Oil – is one of several now pending against energy companies in the federal circuit courts, as environmentalists are seeking to force the courts to set our national global warming policy in light of Congress' inaction. Environmental activists have grown increasingly eager to see some form of green house gas emissions imposed, and frustrated with their failures to accomplish that objective expeditiously through the political process. As such, they have now unleashed a flood of litigation upon the federal courts, which is rising up to the high court. 

Pacific Legal Foundation has challenged the judiciability of these suits, arguing that individual plaintiffs lack standing, and that they have raised non-justiciable political questions. The Ninth Circuit will soon rule in one of those cases: Kivalina v. Exxon. In that case the district court endorsed our arguments, dismissing the plaintiff's suit, holding that Kivalina lacked standing and that Kivalina had raised nonjusticiable political questions. It is hard to predict how the Ninth Circuit will resolve those issues, but a decision affirming the district court would create a split among the federal circuit courts as to the justiciability of global warming tort claims.

In Conneticut v. AEP, the Second Circuit has already ruled in favor of the State of Connecticut and a number of other plaintiffs advancing a global warming tort suit against various energy companies. In that case the Second Circuit failed to articulate how a court could determine whether a defendant had unreasonably emitted green house gases without violating the political question doctrine. The Second Circuit also failed to articulate how global warming plaintiffs can demonstrate their injuries to be fairly traceable to the de minimis emissions of a few hand-selected defendants, out of the entire world of green house gas emitters.

As such, the energy companies have filed a petition for certiorai with the U.S. Supreme Court. We filed an amicus brief in support of the petitioners in that case arguing that Connecticut represents only one of many more global warming tort cases to come. Given the important nature of the climate change issue, and the need to give the elected branches discretion to establish our national global warming policies, we argued that the Court should address the questions presented in Connecticut at this juncture, before environmental activists force courts to set our national global warming policies. Surprisingly the Obama Administration filed its own amicus brief supplementing our argument that such issues are best left to the elected branches.

Adding momentum to this vortex of global warming litigation in the federal courts, the plaintiffs in Comer are, at the same time, asking the Supreme Court to issue a writ of mandamus to compel the Fifth Circuit to reinstate its panel decision upholding their right to advance their global warming suit over the damage caused by Hurricane Katrina. In a whirlwind of unexpected events, the Fifth Circuit initially overturned a district court decision holding global warming tort claims to be nonjusticiable, but then accepted a petition to review that decision en banc; the Fifth Circuit then determined that it lacked a quorum to review the case because a number of the judges were forced to recuse themselves from the case. At that point, because the panel decision had already been vacated, the district court's decision [which had been overturned by the panel] was reinstated. This turn of events was understandably disheartening for the global warming plaintiffs, who are now turning to the Supreme Court.

So now, as Hurricane Earl barrels toward the northeast, the Supreme Court is considering review of two global warming cases – one in which global warming plaintiffs are seeking to reverse the Fifth Circuit and one in which global warming defendants are seeking to reverse the Second Circuit. Environmentalists warn that such hurricanes will only become more frequent and more powerful if climate change continues, and they point to Hurricane Katrina as an example; however, the storm of litigation over global warming may soon come to a head if the Supreme Court grants AEP's petition. With this pattern of developments, the forecast for a grant of certiorari looks favorable. After all, the first global warming case to reach the Supreme Court, Massachusetts v. EPA, seems to indicate the high court is willing to give special consideration to global warming cases, given the important nature of the questions presented. Perhaps a favorable decision will finally subdue this storm of litigation and bring an end to the rising flood in federal courts.

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