by Doug Kendall
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If Congress and the president fail to tackle global warming, can courts
step in? Can federal judges allow people struggling with the losses of
global warming to sue polluters directly?
The idea may at first seem crazy. In a legal world obsessed with claims
of judicial activism, the image of a judge taking on a global problem
like climate change seems like the punch line to a bad joke at an Exxon
board meeting. But it turns out there is a long and proud history of
judges addressing pollution in the absence of environmental regulation.
For much of the last century—long before Congress acted—federal courts
allowed plaintiffs to seek injunctions to stop all kinds of pollution.
Successful suits prevented an ore smelter from releasing deadly
atmospheric arsenic over the homes and families of Utah, the City of
Chicago from draining its sewage into St. Louis’ drinking supply, and
New York City from dumping its garbage into the Atlantic, where it
washed up on the beaches of the New Jersey Shore. Today, states and
environmentalists are turning to these and other historic precedents to
make the case that climate change, too, belongs in the courts—when the
other branches of government refuse to act.
The current battle began in 2004, the midpoint of the Bush presidency.
A coalition of states and private land trusts, led by the State of
Connecticut, that were frustrated with Washington’s failure to
introduce legislation or regulations limiting greenhouse gas emissions
sued several of the nation’s largest electric utilities in Connecticut v. American Electric Power.
The coalition alleged that the companies’ greenhouse-gas emissions
amounted to a “public nuisance” in the form of global warming. Under
the nuisance principle—one of the oldest in English common law—a
property owner may ask the court to stop a defendant who is interfering
with the owner’s enjoyment of his own property, and, in some
circumstances, to pay damages. In the Connecticut case, the plaintiffs
thus sought to persuade the court to order the utility companies to
reduce their greenhouse-gas emissions by showing how such gases cause
global warming, which in turn was creating increased temperatures,
alternating drought and floods, destruction of natural habitats, and
corresponding decreases in property values and human health and
welfare.
Though the cause-and-effect aspect of this argument might seem hard
to prove in court, global-warming victims in other corners of the
country started filing similar lawsuits. In Comer v. Murphy Oil,
residents of Mississippi’s Gulf Coast sued nearby oil refineries for
damages they suffered during Hurricane Katrina, alleging that the
refineries’ greenhouse-gas emissions contributed to the force of the
storm. In 2008, in Native Village of Kivalina v. Exxon,
residents of a small village on a barrier island off the Alaskan coast,
whose homes are being steadily submerged by rising sea levels, filed
suit against two dozen energy companies for their contribution to
climate change. The villagers, who are native Inupiat, seek more than
$400 million in damages to cover the cost of relocating their homes,
again using the doctrine of nuisance law.
Each of these cases was
dismissed at the trial court level. The judges said that the suits
raised a “political question” not fit for the judicial branch to rule
on-a tool that allows judges to punt tricky cases they don’t want to
decide. Two of the lower courts also said that the parties lacked legal
standing to bring the lawsuits, because they could not show their
injuries were sufficiently traceable to the defendants’ conduct.
However, the plaintiffs appealed these dismissals to federal courts of
appeals, arguing that they do have standing and that the “political question” doctrine does not apply.
Then, to the shock of the legal community and even some environmentalists,
two federal appeals courts reversed these rulings. Last September,
after more than three years of deliberating, a two-judge panel on the
U.S. Court of Appeals for the 2nd Circuit overturned the dismissal of Connecticut v. AEP in a sweeping 139-page opinion. A few days later, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit released a similar opinion reinstating the Katrina victims’
lawsuit. The five judges responsible for these rulings-three of whom
were appointed by Republican presidents-found that the plaintiffs had
standing and that the evidence of the relationship between greenhouse
gases and climate change was sufficient for the cases to go forward.
The courts did not punt because of the “political question”
doctrine, pointing out that federal courts have successfully handled
public nuisance claims involving environmental damage for more than a
century.
Here the 2nd Circuit relied heavily on a little-known, century-old Supreme Court case called Georgia v. Tennessee Copper Co.
The suit began in the early 1900s, when the State of Georgia sued two
copper companies in Tennessee for emitting noxious emissions that
destroyed plants and crops in Georgia. No less a figure than Justice
Oliver Wendell Holmes found the copper companies liable for the
nuisance of air pollution and ordered the companies to reduce their
emissions. When the companies failed to fully comply, the court set
emissions limits, with monitoring requirements and costs divided
between the defendants. In other words, the court established the same
sort of regulatory regime Congress would introduce 50 years later with
the 1970 Clean Air Act.
Today, federal courts dealing with global-warming lawsuits are faced with the same dilemma as the Supreme Court was in Tennessee Copper,
only on a much larger scale. Air pollution from one state is causing
harm to other states (indeed, to the whole world). Despite the
encouraging rulings from the courts of appeals, however, today’s
global-warming nuisance suits face an uncertain future. Last month, the 5th Circuit announced a rehearing en banc for the
Katrina victims’ lawsuit, meaning that all of the court’s judges will
sit and rehear the case. The Alaskan villagers, who lost before the
district court, now move to the 9th Circuit Court of Appeals. One or more of these plaintiffs may well wind up before the Supreme Court.
And there a conservative majority may be more sympathetic to the
fossil-fuel industry, which argues that the courts should butt out
because Washington is doing plenty about global warming. The industry’s
Exhibit A is in fact another court case: The Supreme Court’s 2007
ruling in Massachusetts v. EPA, which held that greenhouse
gases are air pollutants within the meaning of the Clean Air Act,
allowing the EPA to regulate the gases directly.
But the 2nd Circuit in September rejected the argument that this displaced the nuisance suits, noting that the EPA had not yet used the Clean Air Act to regulate greenhouse gases. The court
acknowledged that this could change if and when the Obama
administration gets moving.
Judge Peter Hall, the author of the 2nd Circuit’s opinion, conceded the same point in a recent speech at
Georgetown Law School. The courts would happily get out of the business
of hearing nuisance suits about climate change, he said, if the EPA
does its job in restricting these emissions-or better yet, if Congress
passes a comprehensive climate bill. In the meantime, however, Judge
Hall added that judges have the responsibility to take seriously
nuisance lawsuits brought by property owners facing strengthening
hurricanes and rising sea levels. These lawsuits, he said, probably
provide a backstop and “some small impetus” to stonewalling lawmakers.
It’s a trade-off: Polluters can either get out of the way of Congress
or face the, well, nuisance of lawsuits for decades to come.
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