Fifth Circuit Decision Threatens a Tsunami of Climate Change Tort Cases While the Defense Bar Awaits a Circuit Split
On October 16, the United States Court of Appeals for the Fifth Circuit revived a lawsuit filed by residents and property owners along the Mississippi Gulf coast against several corporations in the energy, fossil fuels and chemicals industries alleging that the defendants were responsible for property damage caused by Hurricane Katrina. Comer v. Murphy Oil USA, et al., No. 07-60756 (5th Cir. Oct. 16, 2009). The district court dismissed the plaintiffs' state law nuisance, trespass and negligence claims, finding that the plaintiffs had not adequately linked defendants' operations to Hurricane Katrina and that, in any event, liability for damages relating to global warming constituted a nonjusticiable political question best left to Congress and the Executive branch. The Fifth Circuit disagreed on both of these points, and reversed and remanded the case for further proceedings.
The Issue of Standing
On the issue of standing, the Fifth Circuit found that plaintiffs had alleged a series of scientific facts which, if true, fairly traced the damage caused by Hurricane Katrina to the greenhouse gases emitted from defendants' operations. The Fifth Circuit denied that these links were too attenuated to support standing, writing that the Supreme Court had already embraced such a causal link in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Supreme Court found that Massachusetts had standing to challenge EPA's decision not to regulate greenhouse gases. The Fifth Circuit cited several passages from Massachusetts v. EPA in which the Supreme Court discussed a link between greenhouse gas emissions and rising ocean temperatures, increasingly ferocious hurricanes, and other environmental changes. Likewise, the Fifth Circuit relied on Massachusetts v. EPA to hold that plaintiffs had standing even when they could only allege that defendants' emissions contributed to their injury, and were not solely or materially the cause thereof; defendants could be liable to plaintiffs even though their emissions were not the material cause of Hurricane Katrina and thus, plaintiffs' injuries.
The Political Question Doctrine
The Fifth Circuit rejected the district court's finding that, even if plaintiffs had standing to sue, the court was not empowered to hear the case because plaintiffs' claims involved a nonjusticiable political question committed to Congress or the Executive, i.e., the elected, or, political, branches of the federal government. The "political question" doctrine is primarily a function of the separation of powers; the political question doctrine does not mean that a court abstains from deciding politically charged cases but only from those cases where a judicial decision would inappropriately interfere in the business of the other branches of government. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court held that the doctrine requires a court to abstain when the case presents:
- a textually demonstrable constitutional commitment of the issues to a coordinate political department; or
- a lack of judicially discoverable and manageable standards for resolving it; or
- the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
- the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
- an unusual need for unquestioning adherence to a political decision already made; or
- the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
In what may eventually prove the most controversial part of the Fifth Circuit's opinion, the panel wrote that these factors were merely "interpretive guides" that a court could use if a party moving to dismiss under the "political question" doctrine identified a constitutional provision or federal law that arguably commits a material issue in the case exclusively to a political branch. This would appear to elevate the first Baker factor to dispositive importance and read the disjunctive "or" right out of the Supreme Court's opinion. Because defendants could not identify any federal law or provision of the Constitution that committed the issue of climate change to Congress or the Executive, the Fifth Circuit held that plaintiffs' claims were clearly justiciable.
Significantly, every district court to consider the "political question" doctrine in the course of climate tort cases has examined all six factors and found that these cases present legislative questions that would require balancing environmental, economic, foreign policy and national security interests, essentially beyond the purview of the courts. Even the Second Circuit's opinion in Connecticut v. American Electric Power Co., Inc., Nos. 05-5104 and 05-5119 (2nd Cir. Sept. 21, 2009), permitting a number of states to proceed with a lawsuit against electric power generators seeking judicially-established caps on their greenhouse gas emissions under federal common law nuisance and trespass theories, examined all six factors before determining that no political question was presented. After criticizing the district court decisions as "legally flawed," the Fifth Circuit devoted a rather cursory paragraph to the other Baker factors. The Fifth Circuit reasoned that because the case before it involved only state common law claims and a request for money damages, Mississippi's state tort rules would provide manageable standards with which to decide the case.
Circuit Court Split: What's Next?
Many legal and industry observers thought that the Fifth Circuit would split from the Second Circuit's AEP decision. This split would have increased the likelihood of the Supreme Court taking up the case. For now, observers are waiting to see whether defendants in the Comer case or the AEP case will seek rehearing en banc, before the entire circuit. This might be a particularly effective maneuver in the Fifth Circuit; the two judges authoring the Comer opinion were appointed by President Clinton and are generally considered more liberal than the overall Fifth Circuit bench.
In addition to the Second and Fifth Circuits, the Ninth Circuit is widely expected to throw its hat in the ring as well. In Native Village of Kivalina v. ExxonMobil Corporation et al., No. 08-1138 (N.D.Cal. Sept. 30, 2009), a California district court recently authored an order dismissing a lawsuit by an Eskimo village against oil, energy and utility companies, alleging that their greenhouse gas emissions contributed to the diminishment of the Arctic sea ice protecting the village and seeking monetary damages. Like the district courts in Comer and AEP, the Kivalina district court found both that plaintiffs lacked standing and that the case was barred under the political question doctrine.
Resolution of these cases, either by an en banc hearing or through successful certiorari to the Supreme Court, will take months and, perhaps, a year or more. In the Comer case, it is not even clear that the Fifth Circuit en banc or the Supreme Court would want to entertain the case in its current posture; the district court is likely to reexamine plaintiffs' standing, consistent with the panel's opinion, on remand. In the meantime, one can expect a veritable tsunami of climate change tort cases, and the Comer decision might provide a guide for those crafting complaints. The Fifth Circuit's reasoning, if embraced by other courts, could make it extremely difficult for defendants to attack these suits on a motion to dismiss. The Fifth Circuit's interpretation of the "political question" doctrine would, if embraced by other courts, essentially foreclose that argument in climate change cases under the status quo (i.e., in the absence of federal climate change legislation, which might change the analysis). Further, the panel's treatment of Massachusetts v. EPA could establish a well-defined method of pleading injury from greenhouse gas emissions that defendants will see over and over and over again.