By Glen Hansen
In American Electric Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) (“AEP”), the United States Supreme Court held that the Clean Air Act (“CAA”) and any Environmental Protection Agency action authorized by the CAA displaces any federal common law of interstate nuisance seeking abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Following AEP, several federal courts in 2012 rejected lawsuits based on common law claims that sought to remedy climate change, either by way of damages or injunctive relief.
In Alec L. v. Jackson, slip opinion, 2012 U.S. Dist. LEXIS 75791 (D.D.C. 2012), the U.S. District Court for the District of Columbia held that the AEP decision excluded all federal common law claims that addressed climate change based on the public trust doctrine. In Alec L., several young citizens and non-profit organizations brought an action against several agencies of the Federal Government seeking declaratory and injunctive relief for defendants’ alleged failure to reduce greenhouse gas emissions. The plaintiffs did not allege that the defendants violated any specific federal law or constitutional provision, but instead alleged that defendants have violated their fiduciary duties to preserve and protect the atmosphere as a commonly shared public trust resource under the public trust doctrine. Plaintiffs sought a declaration that the federal agencies “have a duty to reduce global atmospheric carbon dioxide levels to less than 350 parts per million during this century.” Plaintiffs also sought an injunction that directed the federal agencies to not only “take all necessary actions to enable carbon dioxide emissions to peak by December 2012 and decline by at least six percent per year beginning in 2013,” but also to “submit for this Court’s approval: annual reports setting forth an accounting of greenhouse gas emissions originated by the United States and its citizens; annual carbon budgets that are consistent with the goal of capping carbon dioxide emissions and reducing emissions by six percent per year; and a climate recovery plan to achieve Plaintiffs’ carbon dioxide emission reduction goals.” The District Court granted defendants’ motions to dismiss on the ground that plaintiffs failed to raise a federal question under 28 U.S.C. § 1331. The court held that plaintiffs’ public trust claim is a creature of state law in light of the Supreme Court’s statement in PPL Montana, LLC v. Montana, 565 U.S ___, 132 S. Ct. 1213, 1235 (2012), that “the public trust doctrine remains a matter of state law” and its “contours . . . do not depend upon the Constitution.” The court rejected plaintiffs’ arguments that the holding in AEP was limited to common law nuisance claims against defendants who were not federal agencies.
Furthermore, the court held that all federal common law claims involving climate change were proscribed by AEP. In addition, the court explained that “even if the public trust doctrine had been a federal common law claim at one time, it has subsequently been displaced by federal regulation, specifically the Clean Air Act.”
InComer v. Murphy Oil USA, 839 F.Supp.2d 849 (S.D.Miss 2012), the U.S. District Court for the Southern District of Mississippi also explored the viability of federal and state common law claims due to climate change. Plaintiffs brought a representative class action lawsuit for public and private nuisance, trespass, and negligence against defendant oil, electric, chemical and coal companies on the grounds that defendants’ activities are among the largest sources of greenhouse gases that cause global warming; that global warming led to high sea surface temperatures and sea level rise that fueled Hurricane Katrina, which damaged plaintiffs’ property; that global warming has caused plaintiffs to incur higher insurance premiums and has lowered the resale value of their homes due to the increased risk of tropical storm activity, wind damage, and flood damage; that defendants’ emissions constitute an unreasonable invasion of the plaintiffs’ property rights; that the sea level rise causes saltwater intrusion, loss of habitat for hunting and fishing, and the submersion of public and private property; and that all of these effects of global warming have resulted in the loss of the use and quiet enjoyment of plaintiffs’ property. The District Court dismissed the action not only on the grounds of res judicata and collateral estoppel (in light of an earlier case) and the applicable statute of limitations, but also on the following grounds:
(1) Plaintiffs did not have standing because they did not allege their particular injuries are fairly traceable to defendants’ conduct. “The plaintiffs cannot allege that the defendants’ particular emission led to their property damage.” “It is insufficient for the plaintiffs to allege that the defendants’ emission contributed to the kinds of injuries that they suffered.”
(2) Plaintiffs’ claims constituted non-justiciable political questions, “because there are no judicially discoverable and manageable standards for resolving the [global warming] issues presented, and because the case would require the Court to make initial policy determinations that have been entrusted to the EPA by Congress.”
(3) Plaintiffs’ state common law nuisance claims require the courts to determine whether defendants’ emission are unreasonable, just like the preempted federal common law nuisance claims in AEP, and therefore plaintiffs’ claims are preempted by the CAA.
(4) Plaintiffs “cannot possibly” demonstrate that their injuries were proximately caused by the defendants’ conduct: “The 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.”
A similar result was reached by the Ninth Circuit Court of Appeals in Native Village of Kivalina v. ExxonMobil Corp., ___ F.3d ___, 2012 U.S.App.LEXIS 19870 (9th Cir. 2012). There, the Native Village of Kivalina and the City of Kivalina, Alaska (collectively “Kivalina”) sought damages under a federal common law claim of public nuisance against multiple oil, energy, and utility companies. Kivalina alleged that massive greenhouse gas emissions emitted by defendants have resulted in global warming, which, in turn, has led to the reduction of sea ice that shielded the Kivalina from powerful coastal storms, which, in turn, have severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. The District Court dismissed the action on the grounds that the political question doctrine precluded judicial consideration of Kivalina’s claim and that Kivalina lacked standing. The Ninth Circuit affirmed the judgment, but solely on the ground that the Supreme Court in AEP held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action: “That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief.” The Ninth Circuit explained: “When the Supreme Court concluded that Congress had acted to empower the EPA to regulate greenhouse gas emissions, Massachusetts v. EPA, 549 U.S. 497, 528-29, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007), it was a determination that Congress had ‘spoken directly’ to the issue by legislation.” Therefore, “the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”
District Judge Philip M. Pro, who sat on the Ninth Circuit panel by designation and concurred in the court’s judgment, separately addressed his view that Kivalina also lacked standing in the case. In language that is similar to that in Comer, above, Judge Pro explained:
Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees [i.e., defendant oil, energy, and utility companies]. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.
It is one thing to hold that a State has standing to pursue a statutory procedural right granted to it by Congress in the CAA to challenge the EPA’s failure to regulate greenhouse gas emissions which incrementally may contribute to future global warming. See Massachusetts, 549 U.S. at 516-20. It is quite another 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.
In light of these post-AEP cases, it appears that any federal common law claim for either damages or injunctive relief based on the effects of global warming will not succeed. The federal courts will likely refer all claimants to Congress and the EPA.
Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.