Americans love to litigate. We have more lawyers per capita than any other country in the world. And when someone feels they have been harmed by another person or a company, we expect to be able to go to court to rectify that harm.
If the predictions about the consequences of global climate change turn out to be true, some people will be harmed by the emission of greenhouse gases into the world’s atmosphere. To date, the legislative and executive branches of the government – the other sources of remedies for those who feel aggrieved – have not made a lot of progress on addressing greenhouse gas emissions. So it is perhaps not surprising to find that Americans are beginning to turn to the courts for redress. How far that will go and how successful it will be remains to be seen. But this is a synopsis of five cases, four federal and one state, which give a taste of what is likely coming.
The best known case is Massachusetts v. EPA, decided by the U.S. Supreme Court in 2007, in which the Supreme Court held that Section 202(a) of the Clean Air Act authorized the EPA to regulate motor vehicle emissions if the Administrator of EPA formed a judgment that those emissions contributed to climate change. The decision further held that EPA was not free to simply decline to regulate emissions in spite of such a judgment because of a conclusion that the issue was better left to Congress. Massachusetts v. EPA led to a reconsideration of whether carbon dioxide does in fact contribute to global climate change, a “finding of endangerment,” and now draft rules regulating carbon emissions under the Clean Water Act.
Massachusetts v. EPA, as Justice Stevens said, turned on the “proper construction of a congressional statute, a question eminently suitable to resolution in federal court.” But subsequent cases break more challenging ground. In Connecticut v. American Electric Power Company, Inc., the United States Court of Appeals for the Second Circuit permitted eight states, a city and three land trusts to proceed with a claim that six electric power companies that owned and operated fossil-fuel powered plants in twenty states were creating a public nuisance. The District Judge has dismissed the claim as non-justiciable because it presented a “political question.” The Second Circuit reversed and reinstated the suit, reasoning that resolution of greenhouse gas issues had not been clearly relegated to other branches of government, and the complaint stated a claim under the federal common law of public nuisance. How that case ultimately turns out is yet to be decided; the decision only answered the question of whether it could proceed.
The Fifth Circuit went through a far more convoluted process to come to the opposite result, without a conclusion, in Comer v. Murphy Oil, USA. In Comer the owners of properties along the Mississippi Gulf coast brought a class action against oil companies and energy companies, claiming that their emission of greenhouse gases contributed to global warming and added to the ferocity of Hurricane Katrina, which destroyed their property. The District Court dismissed their claim on the grounds that they lacked standing and their claim raised a political question. On appeal to the Fifth Circuit, a three-judge panel reversed and remanded the case to proceed. The Fifth Circuit granted rehearing en banc (by the entire court), which allows the entire group of Fifth Circuit judges to reverse what the three had done. Then just three months later the Fifth Circuit issued a decision that held,
After the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service, on a court of sixteen judges, who are not disqualified in this en banc case. Upon this recusal, this en banc court lost its quorum. Absent a quorum, no court is authorized to transact judicial business.
One assumes the other judges were disqualified because they owned stock in energy companies. Without a quorum the Fifth Circuit concluded it could not rule, and therefore, it dismissed the appeal, letting the District Court dismissal stand. Explaining that outcome to the general public will cause far too many eyes to roll or glaze over. In short, the Fifth Circuit decided that taking on the greenhouse gas emissions of energy companies was too hot to handle.
But the Fifth Circuit “taking the Fifth” so to speak won’t stop the issue from coming back. In 2008 the Native Village of Kivaline and City of Kivalina, the governing bodies of an Inupiat village in Northwest Alaska, filed suit in federal district court in San Francisco against a raft of oil and electrical companies, claiming that the defendants’ actions will result in the village needing to be relocated or abandoned as a result of global warming. That case will wind its way through the Ninth Circuit Court of Appeals, the most liberal, and also the most reversed, circuit court when it comes to environmental issues. Eventually the United States Supreme Court will have no choice but to determine the extent to which the federal courts are open for common law nuisance and trespass cases based on global warming. The outcome of that decision is simply not predictable. But it will determine the extent to which the courts become the default venue for greenhouse gas regulation.
But that won’t be all the judicial action when it comes to global warming. On June 23 in Washington State the Cascade Bicycle Club, Futurewise and the Sierra Club sued the Puget Sound Regional Council in King County Superior Court, claiming that PSRC’s recently adopted Transportation 2040 Plan was adopted in violation of Washington’s State Environmental Policy Act (SEPA) and legislatively created greenhouse gas emission targets because it put too much emphasis on construction of additional vehicle travel lanes and too little emphasis on transit and compact development. In my May 31 post I talked about the SEPA guidance rule for greenhouse gas reporting that the Department of Ecology has published for comment. The Cascade Bicycle Club suit suggests that SEPA’s reach with respect to issues of global warming, and the courts’ willingness to define that reach, may not wait for Ecology’s rule.