What Litigation of a Climate Nuisance Suit Might Look Like

Author:Michael B. Gerrard
Position:Is the Andrew Sabin Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School
Pages:12-14
 
CONTENT
12 SUSTAINABLE DEVELOPMENT LAW & POLICY
WHAT LITIGATION OF A CLIMATE NUISANCE SUIT
MIGHT LOOK LIKE
by Michael B . Gerrard*
In American Electric Power Co. v. Connecticut (AEP),1 the
Supreme Court explicitly left ajar the door to litigation under
state (as opposed to federal) common law for greenhouse
gas (GHG) emissions. Some plaintiffs’ lawyers are also arguing
that the decision leaves room for seeking money damages (rather
than injunctive relief) even in a federal common law case.
For purposes of this Article, let’s imagine a world in which
the courthouse doors are swung open to common law claims for
damages for GHG emissions, and the courts have rejected all
defenses based on displacement, preemption, political question,
and standing. In other words, the plaintiffs finally are able to
litigate the merits. What would that litigation look like?
Because I have spent thirty years as a practicing environ-
mental litigator (sometimes acting for plaintiffs, sometimes for
defendants)2 prior to entering academia, my head swims with the
challenges such a case would pose. Most of the voluminous com-
mentary on the common law GHG cases looks at the threshold
issues; let’s now peer across the threshold and see what’s on
the other side. What we’ll find is an extraordinary number of
open questions that would face the parties and the courts; in this
Article I attempt to enumerate them, without undertaking the
daunting task of answering them.
SELECTION OF DEFENDANTS
It is well recognized that these cases pose unique difficulties
because current atmospheric levels of GHGs result from the
cumulative emissions of millions or billions of emitters since the
onset of the industrial revolution. Adverse impacts result from
this global cumulative load; no specific injury can be attributed
to any specific polluter. Thus one early question in any suit
for money damages is whether liability is joint and several or
whether liability is proportional.
If the joint and several prong prevails, the inevitable result
is third-party litigation. The defendants who are named in the
complaint will sue numerous other GHG emitters who were not
named, and those new defendants will in turn sue still more.
That is what happened in the litigation under the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) of 19803 over liability for cleaning up contaminated
sites. The courts ruled that in some circumstances CERCLA
imposes joint and several liability,4 and it was common in
large sites—especially landfills that had accepted waste from
entire regions—to see concentric circles of third-, fourth- and
fifth-party defendants, ultimately sometimes reaching into the
hundreds. At least one CERCLA case grew so large that no
existing courtroom could accommodate the hundreds of lawyers,
and a special courtroom had to be built in another building.5
Stories abounded about how large chemical companies were
impleading donut shops and nursing homes to spread the pain,
to achieve coercive settlements, and to drag out the cases.6 The
number of potential defendants in a GHG case is staggering, and
the consequent case management challenges are immense.
Determining which parties are liable in turn raises several
questions:
1. PERSONAL JURISDICTION.
It’s not clear whether a state court would find it has juris-
diction over GHG sources in distant states. Moreover, only
approximately 18 percent of today’s carbon dioxide emissions
come from the United States.7 Of the remainder, some are from
multinational companies with sufficient contacts in the U.S. to
be susceptible to service of process here. How will a U.S. court
assert jurisdiction over the rest, and then enforce judgments
against them?
2. REASONABLENESS OF CONDUCT.
Public nuisance liability is generally imposed only on those
who engaged in unreasonable conduct.8 There has been no statutory
or regulatory limitation on carbon dioxide emissions, at least
before the Environmental Protection Agency (EPA) began regu-
lating GHGs in January 2011.9 Thus the emissions that are the
basis for the assertion of liability were for the most part lawful.
How will unreasonableness be defined? What is the effect of
the absence of any commercial technology for controlling GHG
emissions from fossil fuel combustion (other than using non-
fossil energy, or using less energy)? Since one of the factors
in determining reasonableness may be the social value of the
conduct,10 what is the social value of fossil fuel use? Is use of
fossil fuels intrinsically unreasonable? What is the relevance of
more than a century of U.S. policy encouraging fossil fuel use
and the historical dependence of the U.S. economy on fossil fuel
use? Does it matter whether the fossil fuels were used to sup-
port a very comfortable lifestyle (e.g., United States, Canada,
Europe, Japan, Australia) or to lift a population out of poverty
(e.g., China, India)?
3. PERMITS.
As some decisions have suggested,11 is the fact that a facility
has operated under governmental permits a complete defense to
a nuisance claim? Does it matter that the permits are silent as to
GHG emissions?
*Michael B. Gerrard is the Andrew Sabin Professor of Professional Practice and
Director of the Center for Climate Change Law at Columbia Law School. He is a
former partner, and currently Senior Counsel, of Arnold & Porter LLP.
13WINTER 2012
4. STATUTE OF LIMITATIONS.
Many states bar claims for money damages for nuisance
that were incurred more than a set period before the filing of the
complaint; in New York, for example, that time is three years.12
Does that mean that, for a suit brought in 2011, damages could
only be sought for emissions from 2008 and later?
5. CHOICE OF LAW.
Which state’s laws apply to determinations of reasonable-
ness, statutes of limitations, and other issues? If a defendant
company has emitting facilities in twenty states, do twenty dif-
ferent sets of rules apply to the litigation? What about emissions
outside of the United States?
6. SUCCESSORSHIP.
Many emissions may be attributable to facilities that closed
or companies that dissolved decades ago. What principles of
successor liability might apply? Where no successor exists, who
pays for the orphan shares?
7. SUPPLY CHAINS.
Many GHG emissions come from automobile tailpipes. In
order for that to happen, oil is extracted from wells, transported
to refineries, refined into gasoline, transported to filling stations,
and pumped into vehicles that are assembled by various manu-
facturers (from parts fabricated by numerous companies) and
then driven by motorists. Who along this supply chain is liable—
the oil producers, the refiners, the fuel transporters, the filling
stations, the vehicle manufacturers, the motorists? (The same
sort of question could be asked, for example, about coal that is
mined from the ground, sent by rail to a power plant, and burned
there, generating electricity that travels by wire to homes, where
it runs lights and appliances.) What principle is used in selecting
the point(s) along the chain where liability attaches? How does
a court assess the reasonableness of the conduct at each step
in this chain?
8. GOVERNMENTAL LIABILITY.
If a national or state government affirmatively encouraged
fossil fuel use or other GHG-generating activities, such as
through subsidies, leasing of publicly owned resources (e.g.,
offshore lands), provision of facilities for the use of the fuels
(e.g., interstate highways), use of governmental powers (e.g.,
eminent domain), technological mandates, or direct purchases,
does it share in the liability? What if the government knew of
a risk but failed to take steps to protect its population, such as
by building or enlarging flood protection levees? Is sovereign
immunity a total bar to such claims, or have there been waivers?
If the government would be liable but for sovereign immunity, is
private defendants’ liability reduced proportionately?
9. NON-INDUSTRIAL EMISSIONS.
Approximately 61.4 percent of global GHG emissions result
from energy use, and about 18.3 percent are attributed to defor-
estation.13 Much of this deforestation occurs on governmentally
owned land. Are the entities that engaged in or allowed this
deforestation liable? If so, would that include, for example, the
governments of countries in South America and Africa, where
the highest annual loss of forests is occurring?14
OTHER ISSUES
GHG tort litigation would raise many other issues:
1. CAUSATION.
It has become a truism in climate policy circles that specific
weather events cannot be attributed to GHG emissions.15 We
can say that hurricanes, droughts, and heat waves will be more
frequent and severe on a warmer planet, but such events occurred
long before the industrial era; there has always been natural
variability. How would the victims of one such event establish
that it specifically was caused by climate change? Would they
have to? What burden of proof would they have to bear? (This
problem might be somewhat eased for injuries resulting from
longer trends, such as coastal erosion and snowpack melt, and
for expenses for reasonable adaptation efforts.)
2. CLASS ACTIONS.
If causation can be established and defendants can be found
who are potentially culpable, subject to the court’s jurisdiction,
and sufficiently wealthy to be worth suing, the number of poten-
tial plaintiffs may be very large. A class action would be the
natural way to proceed. The same day that the Supreme Court
issued its decision in AEP v. Connecticut, it also announced
Wal-Mart Stores, Inc. v. Dukes,16 which evinced skepticism
toward sprawling class actions.17 Will the courts now be receptive
toward class actions against GHG emitters?
3. ISSUE PRECLUSION.
If this kind of litigation succeeds, any entity deemed to be a
major emitter (e.g., a large electric utility) is likely to find itself
the subject of multiple lawsuits. If it litigates its liability in one
case and loses, is that holding binding against it in subsequent
cases under doctrines such as res judicata? What if it litigates
and wins one—can it use that victory in subsequent cases?
4. MEASURE OF DAMAGES.
If a neighborhood is wiped out by an event that a court finds
was caused by climate change, are only purely economic losses
recoverable? What about the loss of community and other less
tangible losses? Can anyone recover for loss of biodiversity and
other ecological impacts? Can recovery be obtained for losses that
are inevitable (as a result of the GHGs already in the atmosphere)
but that will not be incurred for another generation or two?
5. ASSUMPTION OF RISK.
If someone builds, or remains in, a house in an area now
known to be vulnerable to flooding as a result of sea-level rise, and
that house is in fact flooded, can the owner fully recover damages
for the loss? Is there any obligation to avoid (or abandon) the area,
or to mitigate damages in the face of newly understood perils?
6. INSURANCE COVERAGE.
Much of the litigation under CERCLA concerned insurance
coverage for cleanup liability; the transaction costs were
enormous.18
14 SUSTAINABLE DEVELOPMENT LAW & POLICY
Would the same pattern recur, with many or most GHG
emitters seeking insurance coverage?
7. NON-EMISSIONS CONDUCT.
In assessing the liability of a GHG emitter, are its quantified
emissions the only factor? What if, as some of the pending suits
allege, certain defendants misrepresented the science of climate
change? Or what if some defendants offset their emissions by,
for example, helping pay for a wind farm? Does any of this
count in terms of imposing liability?
8. VENUE AND CONSOLIDATION.
If joint and several liability is the rule, and virtually every
large GHG emitter in the world is ultimately brought in, there
may be multiple litigations raising the same issues of liability
(as opposed to damages) against many of the same parties.
Where will these cases be brought? Will all the federal cases be
consolidated before one district judge under the multidistrict liti-
gation rules?19 What becomes of the state cases? What happens
if similar cases proceed in another common law country?
9. DISCOVERY.
What is the scope of discovery in these cases? May plain-
tiffs probe into corporate defendants’ industrial processes (to see
whether there were opportunities to operate more efficiently),
their public statements and private communications about
climate change (to see whether there are inconsistencies), and
their lists of suppliers and customers (in search of additional
defendants)? May defendants explore whether the plaintiffs were
themselves profligate energy users and whether they should have
known not to live on a beach?
10. ALIEN TORTS.
If a U.S. GHG emitter’s conduct is found to be tortious,
may a resident of another country use the U.S. courts to claim
damages?20 Would high GHG emissions rise to the level of
extreme breach of long- accepted norms that is needed to trigger
such claims? If so, what are the limits on how many foreigners
may bring such cases?
CONCLUSION
As this Article shows, if any plaintiffs successfully make
their way through the keyholes that may have been left by the
Supreme Court in AEP, they and the courts in which they seek
redress will still face extraordinary difficulties.
At its core, AEP is a separation of powers decision. Even
those participating members of the Court who are presumably
most enthusiastic about controlling GHGs agreed that the job
of setting emissions limitations is beyond the competence of
the courts and that Congress has assigned it to the EPA. If any
trial court does eventually approach the merits of a suit seeking
money damages for GHG emissions, it may find it is embarking
down a wormhole, and upon comprehending the journey it may
recoil. Interpreting and enforcing congressional and regula-
tory mandates is an important and proper role for the courts in
confronting climate change; erecting a new liability scheme to
redress the impacts of our economic system is an entirely differ-
ent and perilous voyage.
Endnotes: What Litigation of a Climate Nuisance Suit Might Look Like
1 131 S. Ct. 2527 (2011).
2 The author’s law firm, Arnold & Porter LLP, represents a defendant in
Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 873-76
(N.D. Cal. 2009), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009), which
is now under appeal to the U.S. Court of Appeals for the Ninth Circuit, and a
defendant in Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010), which
was recently refiled in the U.S. District Court in Mississippi. The author writes
this Article, however, purely in his academic capacity.
3 Pub. L. No. 96-510, 94 Stat. 2767 (codified at 42 U.S.C. § 9607 (2006)).
4 E.g. Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870
(2009).
5 See Jack Hitt, Toxic Dreams: A California Town Finds Meaning in an Acid
Pit, HARPER’S, July 1995, at 57 (describing the litigation surrounding the
Stringfellow Acid Pits in Riverside County, California).
6 See, e.g., Robert Tomsho, Pollution Ploy: Big Corporations Hit by Super-
fund Cases Find Way To Share Bill, WALL ST. J., Apr. 2, 1991, at A1 (reporting
efforts by Special Metals Corp. and USA Co. to subject hundreds of small busi-
nesses, school districts, and municipalities to litigation in an attempt to diffuse
the companies’ financial liability).
7 See U.N. Statistics Div., Indicator 7.2: Carbon Dioxide Emissions, Total,
Per Capita and Per $1 GDP (PPP), MILLENNIUM DEV. GOALS INDICA-
TORS (Last visited Mar. 9, 2012), http://mdgs.un.org/unsd/mdg/SeriesDetail.
aspx?srid=749&crid= (listing US carbon dioxide emissions in 2008 as
5,461,014 thousand metric tons, 18% of the 29,862,261 metric tons of carbon
dioxide emitted that year).
8 See, e.g., RESTATEMENT (SECOND) OF TORTS §§ 821B, 826 (1965)
(listing and commenting on the elements of public nuisance).
9 A minor exception is the Regional Greenhouse Gas Initiative (RGGI), a
program of ten northeastern and Mid-Atlantic States that has imposed a cap on
carbon dioxide emissions from electric power generating stations as of January
2009. However, RGGI is overallocated, meaning that available allowances have
exceeded emissions, so that the carbon dioxide emissions fell within permis-
sible levels. See Carbon Offset Research & Educ., Regional Greenhouse Gas
Initiative, STOCKHOLM ENVTL. INST. & GHG MGMT. INST. (Jan. 2011),
http://www.co2offsetresearch.org/policy/RGGI.html.
10 RESTATEMENT (SECOND) OF TORTS § 827(c).
11 E.g., North Carolina v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010).
12 N.Y. C.P.L.R. 214 (McKinney 2011).
13 KEVIN A. BAUMERT, TIMOTHY HERZOG & JONATHAN PERSH-
ING, NAVIGATING THE NUMBERS: GREENHOUSE GAS DATA AND
INTERNATIONAL CLIMATE POLICY 5 fig.1.3 (2005), http://pdf.wri.org/
navigating_numbers.pdf.
14 See FOOD & AGRIC. ORG. OF THE U.N., GLOBAL FOREST
RESOURCES ASSESSMENT 2010: MAIN REPORT 17 (2010), http://www.
fao.org/docrep/013/i1757e/i1757e.pdf.
15 See, e.g., Paul Krugman, Op-Ed., Droughts, Floods and Food, N.Y. TIMES
(Feb. 7, 2011), http://www.nytimes.com/2011/02/07/opinion/07krugman.html
(while no one weather event can be attributed to greenhouse gas, patterns of
extreme highs and extreme weather is expected from climate change).
16 131 S. Ct. 2541 (2011).
17 See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (finding that
a “sprawling class” originally authorized by the District Court as not meeting
the requirements of Fed. R. Civ. P. 23).
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