Cross-posted from Warming Law.
A federal appeals court has reversed the dismissal of a lawsuit brought by victims of Hurricane Katrina seeking damages related to global warming, while a federal district court in California has dismissed a similar lawsuit brought by an Alaskan village allegedly disappearing beneath rising sea levels. These rulings come weeks after the Second Circuit threw tort-based climate litigation back into the limelight when it revived a similar “nuisance” lawsuit brought by states and environmental groups against several major electric utilities.
On Friday, the U.S. Court of Appeals for the Fifth Circuit reversed and remanded a lawsuit that had been dismissed on political question and standing grounds by a federal district court judge in Mississippi. In Comer, et al. v. Murphy Oil USA, et al., property owners along Mississippi’s Gulf Coast filed a class action lawsuit against several insurance companies as well as oil companies seeking damages related to Hurricane Katrina. The plaintiffs alleged that the oil companies had “engaged in activities that have produced the greatest single source of by-products leading to the development and increase of global warming,” and that the environmental conditions in the Gulf of Mexico that fostered the strengthening of Hurricane Katrina were “the direct result of” global warming. Their case was dismissed in August 2007.
Last week, overturning that dismissal, a three-judge panel of the Fifth Circuit ruled that the plaintiffs have standing to bring their public and private nuisance claims, as well as trespass and negligence claims, and that none of these claims present non-justiciable political questions. (The Court of Appeals affirmed the dismissal of several other claims, including claims alleging unjust enrichment, fraudulent misrepresentation, and civil conspiracy). In a footnote, the Fifth Circuit acknowledged and concurred with the Second Circuit’s reasoning in Connecticut v. American Electric Power (AEP), a similar case in which the Second Circuit recently held that a group of states and environmental groups could sue several electric utility companies for allegedly creating a “public nuisance” through their emissions of climate-warming greenhouse gases.
Softening the impact of this Fifth Circuit victory, however, is the news that a similar case still at the district court level was dismissed late last month. In a ruling dated Sept. 30, Judge Saundra Brown Armstrong of the Northern District of California dismissed Native Village of Kivalina v. ExxonMobil Corp., also on political question and standing grounds.
In Kivalina, a small, primarily-Eskimo village situated on a barrier reef that is disappearing from Alaska’s northwest coast — allegedly due to rising water levels — sought damages from 19 of the country’s biggest oil companies for their alleged contribution to global warming, which the village described as “a nuisance that is causing severe harms to Kivalina.” In addition, the village had claimed that several of these companies were engaged in a civil conspiracy, by working in “agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue — so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior as a condition of further buying their products.”
In contrast to the Fifth Circuit panel, the Kivalina court took issue with the Second Circuit’s decision in the AEP case when determining whether the case had the “judicially discoverable and manageable standards” necessary for it to be justiciable. In holding that it did not, the district court disagreed with the Second Circuit’s assertion that “well-settled principles of tort and public nuisance law” provided appropriate guidance for these sorts of claims, finding that the nature of global warming was different from the environmental problems that have been at issue in previous tort-based cases. Similarly, the Kivalina court held that the plaintiffs lacked Article III standing because they had failed to sufficiently demonstrate that the cause of global warming was traceable to the 19 defendants.
Despite the Court’s ruling in Kivalina, the ruling by the Fifth Circuit, combined with the recent sweeping ruling by the Second Circuit in the AEP case, invites further attention to the progress of tort-based climate litigation and its role in motivating both the EPA and Congress to address global warming. Until recently, these lawsuits seemed unlikely to prevail, since three noteworthy cases — Comer, AEP, and a third suit, brought by California against automakers — had been dismissed at the district court level and seemed stalled during the appellate process. In the past month, however, both the Comer and the AEP dismissals have been reversed on appeal, possibly boding well for the plaintiffs in Kivalina should they choose to appeal. (The California suit was voluntarily dropped earlier this year, while pending an appeal in the Ninth Circuit).
As we have reported before, this litigation strategy as a means to address global warming has therefore gained considerably more traction in recent weeks, increasing the pressure on the political branches of our federal government to take action on climate change if they would prefer that courts not devise their own remedies for plaintiffs who have been impacted by global warming.
No word yet from the plaintiffs in Kivalina or the defendants in Comer on whether they will appeal these decisions. As always, stay tuned to Warming Law for updates on these and other pertinent cases.
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