LOCATING LIABILITY FOR CLIMATE CHANGE: A COMPARATIVE ANALYSIS OF RECENT TRENDS IN CLIMATE JURISPRUDENCE.

• Author: Beck, Harrison

1. INTRODUCTION 886 II. A TORT THEORY OF CLIMATE LIABILITY 888 A. The First Wave of Climate Nuisance Suits Crashes 888 B. A Second Wave of Nuisance Suits Rises 891 III. THE ATMOSPHERIC TRUST LITIGATION CAMPAIGN: FROM THE STATES TO THE FEDERAL GOVERNMENT 895 IV. COMPARING THE PUBLIC NUISANCE SUITS TO ATMOSPHERIC TRUST LITIGATION 903 A. Preemption by the Clean Air Act 903 B. Justiciability 910 V. ATMOSPHERIC RECOVERY LITIGATION: A HYBRID BETWEEN THE Two THEORIES 913 VI. CONCLUSION 916 I. INTRODUCTION

   "It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses." (1) Warming oceans, rising seas, severe storms, and longer droughts threaten the lives of hundreds of millions of people all over the world, mostly those historically on the wrong end of industrial development. (2) Despite the threat, the United States, the country most responsible for causing climate change, (3) has taken precious little action to address the crisis. (4)

   In response, citizens, cities, and states have come to courts in search of answers. (5) Yet, courts reviewing these cases continue to turn away from such a global and complex crisis. (6) Instead, courts have dismissed climate claims for lack of standing, (7) as nonjusticiable political questions, (8) or as precluded by the Clean Air Act (9) (CAA). (10) Indeed, especially in the wake of the Ninth Circuit's recent dismissal of Juliana v. United States (Juliana II), (11) the notorious lawsuit alleging the federal government violated young peoples' constitutional rights by affirmatively causing climate change, many analysts questioned whether the judiciary is a viable outlet for assigning and allocating liability for climate change. (12)

   In seeking to unpack courts' apprehension to meaningfully address climate change, this Chapter analyzes two common law legal theories (13) as potential avenues for assigning and mandating liability for climate change--public nuisance and the public trust doctrine. In the public nuisance context, a recent wave of litigants, mostly cities and states, filed lawsuits against fossil-fuel companies alleging that climate change constitutes a public nuisance and asking for both injunctive and compensatory relief. (14) Similarly, in the public trust doctrine context, youth plaintiffs allege that states and the federal government have inalienable duties to protect public trust resources for young people and future generations, and these governments violated those obligations by both failing to address and affirmatively causing climate change. (15) The litigants in atmospheric trust cases request injunctive and declaratory remedies, calling on governments to create binding plans to mitigate the climate crisis commensurate with what the leading science demands. (16)

   In order to analyze these divergent and still-burgeoning theories of liability for climate change, this Chapter is divided into parts. Part II focuses on public nuisance suits, providing an update regarding the recent explosion of litigation and explaining the hurdles these suits face and how litigants may be able to overcome them. Part III turns to public trust doctrine litigation, again providing an update to readers regarding the ongoing lawsuits and addressing the principle obstacles facing those claims. Part IV then compares these two lines of case law and identifies some of the advantages and disadvantages of each approach. The Chapter concludes by briefly analyzing the potential role of an untested legal theory--atmospheric recovery litigation (17)--as a potential hybrid between the two theories.

2. A TORT THEORY OF CLIMATE LIABILITY

   Part II proceeds in two subparts. The first subpart tells the story of the first set of climate nuisance cases. The second subpart examines the more recent cases brought under the public nuisance theory.

   1. The First Wave of Climate Nuisance Suits Crashes

      Suits alleging that climate change constitutes a public nuisance started to spring up in the mid-2000s. (18) This first wave of climate nuisance suits (19) failed to catalyze the outcomes that first-wave plaintiffs intended. (20) Reviewing courts, like many others hearing early climate change cases, cowered in the face of such a massive and complicated problem. (21) As a result, judges overseeing these cases were inclined to avoid judicial intervention in the climate crisis. (22) Courts held that first-wave cases were displaced by the Clean Air Act. (23) In telling the story of these early cases, this subpart speaks to the obstacles faced by first-wave nuisance suits, focusing on the applicability of federal preemption and displacement doctrines, and examines where modern science can overcome outdated, fear-induced arguments.

      The initial, and most influential, of the first-wave of cases is American Electric Power Co. v. Connecticut. (24) In that case, two sets of plaintiffs, including eight states, New York City, and three land trusts, sued five major emitters and alleged that, by contributing to climate change, these companies substantially and unreasonably interfered with public rights in violation of federal common law and state public nuisance law. (25) The plaintiffs asked for injunctive relief capping the defendants' carbon dioxide emissions. (26) Although the district court dismissed these claims as political questions, the Second Circuit reversed, relying on Illinois v. Milwaukee (Milwaukee I), (27) which provided a federal common law right of action for states to sue in order to abate pollution originating in other states. (28) The court further asserted that the Clean Air Act did not displace the plaintiffs' claims because the Act did not require, but rather authorized, regulation of greenhouse gases. (29) Because the Environmental Protection Agency (EPA) had not yet promulgated regulations for greenhouse gases, no displacement concerns existed at the time. (30) As a result, the court permitted the case to proceed. (31)

      The Supreme Court disagreed and reversed the Second Circuit, holding that the Clean Air Act displaces federal common law public nuisance claims. (32) In the Court's view, the Act's concern was not necessarily whether EPA promulgated regulations pursuant to the Clean Air Act. (33) Rather, the relevant question was whether the field of law at issue--greenhouse gas regulation--had been occupied by federal legislation and "not whether it ha[d] been occupied in a particular manner." (34) According to the Court, by delegating to the Environmental Protection Agency the authority to regulate greenhouse gases, (35) Congress occupied the field the plaintiffs were trying to occupy with federal common law nuisance and, consequently, displaced their claims. (36) Federal judges, the Court opined, lacked the scientific and technical expertise of Congress and implementing agencies to discern the proper amount and method of greenhouse gas legislation and therefore should not meddle where Congress had already acted. (37) The Court relied on Illinois v. Milwaukee (Milwaukee II), (38) the follow-up case to the one relied upon by the Second Circuit. (39) In that case, the Court held that Congress displaced the federal common law right of action recognized in Milwaukee I by passing the Clean Water Act. (40) Jumping off of that the American Electric Power Court held that the Clean Air Act likewise displaced the plaintiffs' claims. (41) Under American Electric Power, therefore, the Clean Air Act displaces federal common law suits that allege climate change constitutes a public nuisance and that seek injunctive remedies. Still, in the wake of the decision, the door seemed open for federal common law claims seeking damages.

      However, courts quickly determined that the Clean Air Act also displaces federal common law nuisance actions seeking compensatory damages. (42) In Native Village of Kivalina v. ExxonMobil Corp., the Ninth Circuit affirmed a decision by the District of Northern California dismissing a federal common law public nuisance case brought by a village in Alaska facing displacement as a result of sea level rise. (43) Despite the differences between the village's claims and those alleged in American Electric Power (for example, that the Native Village of Kivalina plaintiffs requested compensatory damages instead of injunctive relief), the court held that the Clean Air Act displaced the plaintiffs' claim. (44) The Ninth Circuit reasoned that the village was attempting to regulate greenhouse gas emissions by way of compensatory damages, something Congress envisaged as a purpose of the Act. (45) It followed, therefore, that the holding from American Electric Power should extend to the village's claim. (46) As a result of the Supreme Court's decision to deny certiorari, Native Village of Kivalina closed the door to federal common law public nuisance claims seeking damages, at least in the Ninth Circuit. (47)

      Importantly, neither American Electric Power nor Native Village of Kivalina foreclosed public nuisance claims raised under state law. The Supreme Court in American Electric Power remanded the plaintiffs' state-law-based claims, though the parties never litigated them further. (48) The Court's decision to remand suggests the justices believed state-law-based claims may not be preempted by the Clean Air Act. (49) Similarly, the Ninth Circuit in Native Village of Kivalina refused to exercise supplemental jurisdiction over the plaintiffs' state-law-based claims, a hint that it too doubted federal courts had original jurisdiction over such claims. (50) Consequently, first-wave suits left open the potential for state-law-based public nuisance cases.

   2. A Second Wave of Nuisance Suits Rises

      In recent years, states, cities, and municipalities have filed a number of state-law-based public nuisance suits seeking compensation for the effects of the climate crisis. (51) Learning from the first-wave cases, second-wave nuisance litigation consistently asks for...