October 20, 2009

Courts begining to allow climate nuisance cases

Pressure from the judiciary to act in response to the threat of climate change continues as the 5th Circuit releases an opinion that opens the court doors to climate nuisance cases. Comer v. Murphy Oil USA, No. 07-60756 (5th Cir. Oct. 16, 2009). The panel of judges partially reversed a dismissal of a tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses. The plaintiffs in the case filed suit against various energy, fossil fuel and chemical industry companies for damages to property stemming from rising sea levels and the ferocity of Hurricane Katrina, which the plaintiffs alleged was caused by the release of greenhouse gases ("GHGs").

The claim was originally dismissed by the District Court on the grounds that the case lacked standing and was not justiciable. However, the 5th Circuit’s reversal signals that plaintiffs now have standing to raise at least three common law claims (nuisance, trespass, negligence) for GHG emmisions, and that the claims are likely justiciable. The Judges held that the plaintiffs “allegations of a causal link between greenhouse gas emissions, global warming, and the destruction of the plaintiffs' property by rising sea levels and the added ferocity of Hurricane Katrina” provide enough evidence to satisfy the “fairly traceable” standard needed to satisfy standing requirements.

Furthermore, with regard to the justiciability question, the 5th Circuit analogized the claims to previous tort actions and called out the fact that no federal body has regulated greenhouse gas releases. “[Plaintiff’s claims] are justiciable because they plainly have not been committed by the Constitution or federal laws or regulations to Congress or the president. There is no federal constitutional or statutory provision making such a commitment, and the defendants do not point to any provision that has such effect.” The 5th Circuit also specifically mentioned that they were taking the 2nd Circuit’s lead provided by the recent Connecticut v. AEP decision to allow the case to proceed. However, the 5th Circuit found that plaintiff’s unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims do not satisfy federal standing requirements, because they are generalized grievances.

In the 9th Circuit, a native Alaskan tribe claimed that they will be forced to relocate their village because of climate change effects caused by GHG by 24 energy utilities.  The case was dismissed on standing and justiciability grounds. Native Village of Kivalina v. ExxonMobil Corp., No. C 08-1138 (N.D. Cal. Sept. 30, 2009). An appeal of the case to the 9th Circuit is likely, and in the event that the Court follow the 2nd and 5th Circuit, a strong precedent would be set to establish firm jurisprudence grounds for allowing such claims across the country.

These decision show that if Congress doesn't take action to price the true cost of climate change, then the judiciary will step in and a jury to do it for them. Pressure from the courts will not only push law makers to act, but also provide an incentive for polluters to support climate change regulation. From the polluter’s perspective it is likely better to have such a regulatory system than have the potentially harsh open proceedings with damage calculations coming from a local court.

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