Post on 12-Feb-2022
No. 07-60756
IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
Ned Comer, et al.,Plaintiffs-Appellants
v.
Murphy Oil U.S.A., et al.,Defendants-Appellees
On Appeal from the United States District Court forthe Southern District of Mississippi
BRIEF FOR AMICI CURIAE EDISON ELECTRIC INSTITUTE, THE AMERICAN PUBLIC POWER ASSOCIATION, THE NATIONAL
RURAL ELECTRIC COOPERATIVE ASSOCIATION, AND THE NATIONAL MINING ASSOCIATION IN SUPPORT OF
DEFENDANTS-APPELLEES UPON REHEARING EN BANC
Ed R. Haden Jonathan P. DyalBalch & Bingham LLP1901 Sixth Avenue NorthSuite 1500Birmingham, AL 35203-4642(205) 251-8100
David B. Rivkin, Jr.Mark W. DeLaquilBaker & Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
Counsel for Amici Curiae(Additional Counsel Listed on Inside Cover)
F. William BrownellNorman W. FichthornShawn Patrick ReganAllison D. Wood Hunton & Williams LLP1900 K Street, NWWashington, DC 20006-1109(202) 955-1500
Douglas A. Henderson Troutman Sanders LLP600 Peachtree Street, Suite 5200Atlanta, GA 30308-2216(404) 885-3000
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CERTIFICATE OF INTERESTED PERSONS
Pursuant to Federal Rule of Appellate Procedure 26.1 and Fifth
Circuit Rule 28.2.1, counsel for Amici Curiae certifies that the following
persons and entities are interested in the outcome of this case. These
representations are made in order that the judges of this Court may
evaluate possible disqualification or recusal.
Amici Curiae
Edison Electric InstituteThe American Public Power AssociationThe National Rural Electric Cooperative AssociationNational Mining AssociationAmerican Farm Bureau FederationAssociation of International Automobile Manufacturers Inc.Randall S. AbateDavid E. AdelmanDenise E. AntoliniLynn E. BlaisJohn E. BonineWilliam W. BuzbeeFederico CheeverRobin Kundis CraigHolly DoremusKirsten H. EngelDaniel FarberRobert L. GlicksmanJames R. GodleyOliver A. HouckDavid HunterAlice KaswanAlexandra B. KlassSarah Krakoff
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Douglas A. KysarRichard LazarusThomas O. McGarityJeffrey G. MillerKenneth M. MurchisonHari M. OsofskyPatrick A. ParenteauRobert V. PercivalZugmunt J.B. PlaterRonald J. RychalkWendy E. WagnerKeith WerhanMary Christina WoodSandra B. Zellmer
Counsel for Amici Curiae
BAKER & HOSTETLER LLPDavid B. Rivkin, Jr.Mark W. DeLaquil
BALCH & BINGHAM LLPEd R. Haden Jonathan P. Dyal
HUNTON & WILLIAMS LLPF. William BrownellNorman W. FichthornShawn Patrick ReganAllison D. Wood
TROUTMAN SANDERS LLPDouglas A. Henderson
GIBSON, DUNN & CRUTCHER LLPRaymond Bernard Ludwiszewski
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WIDENER UNIVERSITY, SCHOOL OF LAWJames Robert May
DONAHUE & GOLDBERG LLPSean H. Donahue
Defendants-Appellees
Murphy Oil USA, Inc.Universal Oil ProductsShell Oil CompanyExxonMobil Corp.AES Corp.Allegheny Energy Inc.Alliance Resource Partners, L.P.Alpha Natural Resources, Inc.Arch Coal, Inc.BP America Production CompanyCinergy Corp.ConocoPhillips CompanyConsol Energy Inc.The Dow Chemical CompanyDuke Energy Corp.BP Products North America Inc.E.On AgE.I. Dupont De Nemours & Co.Entergy Corp.FirstEnergy Corp.FPL Group Inc.Honeywell International Inc.International Coal Group, Inc.Massey Energy CompanyNatural Resource Partners L.P.Peabody Energy CorporationReliant Energy Inc.Tennessee Valley AuthorityWestmoreland Coal CompanyXcel Energy Inc.
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Chevron USA Inc.The American Petroleum Institute
Counsel for Defendants-Appellees
ARNOLD & PORTER LLPNancy G. MilburnYue-Han Chow Michael B. Gerrard
BAKER BOTTS LLPJ. Gregory CopelandSamuel CooperSteven J. Mitby
BENNETT, LOTTERHOS, SULSER & WILSON PAWilliam L. Watt
BROWN, BUCHANAN & SESSOMS PARaymond L. Brown
BUTLER, SNOW, O’MARA, STEVENS & CANNADA Kenneth W. Barton Benjamin McRae Watson
CARR, ALLISON, PUGH, HOWARD, OLIVER & SISSON PCThomas L. Carpenter, Jr.
COTTEN SCHMIDT & ABBOTT LLPLawrence E. AbbottCharles H. Abbott
COVINGTON & BURLING LLP Robert A. LongTheodore P. Metzler
CROWELL & MORING LLPKathleen Taylor Sooy
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Scott L. Winkelman Tracy A. Roman Daniel W. Wolff
CORLEW, MUNFORD & SMITH PLLCJohn G. Corlew Katherine K. Smith
FORMAN, PERRY, WATKINS, KRUTZ & TARDYRichard L. Forman
FRANKE & SALLOUM PLLCShellye V. McDonaldRichard P. Salloum
FRILOT LLC Kerry J. Miller Paul C. Thibodeaux
GHOLSON, BURSON, ENTREKIN & ORR PLLC Robert D. Gholson Craig N. Orr Noel A. Rogers Daniel D. Wallace
HOLCOMB DUNBARJack F. Dunbar
HORTMAN, HARLOW, MARTINDALE, BASSI, ROBINSON & MCDANIEL PLLCNorman G. Hortman, Jr. David L. Martindale
JENNER & BLOCK LLPRick RichmondBrent Caslin
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JOHNSON GRAY MCNAMARA LLCMary S. JohnsonThomas M. McNamara JONES DAYMichael L. Rice Kevin P. Holewinski Thomas E. Fennell
KING & SPALDING LLP Robert E. MeadowsTracie J. Renfroe Jonathan L. Marsh
MITCHELL, MCNUTT & SAMS John G. Wheeler
MUNGER, TOLLES & OLSON LLPDaniel P. Collins
O’MELVENY & MYERS LLPJonathan D. HackerMeaghan McLaine
SIDLEY AUSTIN LLPPeter D. KeislerQuin M. Sorenson
TENNESSEE VALLEY AUTHORITY Maureen H. DunnHarriet A. CooperEdwin W. Small
WISE, CARTER, CHILD & CARAWAYCharles Edwin RossJames Earl Graves, III William B. Lovett, Jr.
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Plaintiffs-Appellants
Ned Comer Brenda Comer Eric Haygood Brenda Haygood Larry Hunter Sandra L. Hunter Mitchell Kisielweski Johanna KisielweskiElliott Roumain Rosemary Roumain Judy Olson David Lain
Counsel for Plaintiffs-Appellants
F. GERALD MAPLES, P.A.F. Gerald MaplesStephen M. WilesCarlos A. Zelaya, IIAlexander J. Williamson
PORTER & MALOUFTimothy W. Porter
MUMPHREY LAW FIRM, LLCJ. Wayne MumphreyWayne B. MumphreyClayton Connors
In addition, counsel notes that the following entities were named
as defendants in a proposed fourth amended complaint annexed to
Plaintiffs’ motion for leave to amend filed in the District Court, which
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leave was denied as moot in the District Court’s dismissal order dated
August 30, 2007.
Murphy Oil USAUniversal Oil Products Company (UOP)Shell Oil CompanyChevron U.S.A. Inc.ExxonMobil CorporationBP p.l.c. d/b/a BP Amoco Chemical Company and BP Energy CompanyBP America Production CompanyBP Products North America Inc.Superior Energy Services, Inc.Placid Oil CompanyKerr-McGee Oil & Gas CorporationTotal PetroChemicals USA, Inc.ConocoPhillips CompanyAtlantic Richfield CompanyPioneer Natural Resources USA, Inc.Devon Energy Production Company, L.P.Marathon Petroleum Company LLCOccidental Crude Sales, Inc.Occidental Energy Marketing, Inc.Total Gas & Power North America, Inc.Hess CorporationAnadarko Petroleum CorporationApache CorporationBurlington Resources Offshore Inc.American Petroleum InstituteOil and Refining Entities 1-100AEP Generating CompanyColumbus Southern Power CompanyOhio Power Company, d/b/a/ AEP OhioSouthwestern Electric Power CompanyAEP Texas Central CompanyAEP Texas North CompanyAppalachian Power Company
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Indiana Michigan Power CompanyKentucky Power CompanyPublic Service Company of OklahomaAlabama Power CompanyGeorgia Power CompanyGulf Power CompanyMississippi Power CompanySouthern Power CompanyTennessee Valley AuthorityXcel Energy Inc.Northern States Power CompanyNorthern States Power CompanyPublic Service Company of ColoradoSouthwestern Public Service Co.TXU Energy Solutions Company, LPTXU Big Brown Company LPTXU Generation Development Company LLCTXU Generation Development Company II LLCTXU Gas Company, LPTXU Energy Company LLCTXU Energy Retail Company LPTXU Portfolio Management Company LPTXU Generation Company LPTXU Generation Management LLCTXU Enterprise Holdings Company, LLCCinergy Corp.Duke Energy Ohio, Inc.Duke Energy Carolinas, LLCDuke Energy Kentucky, Inc.Duke Energy Gas Services, LLCDuke Energy Indiana, Inc.Duke Energy Operating Company, LLCDuke Energy Merchants, LLCDuke Energy Fossil-Hydro, LLCThe Union, Heat and Power Company Reliant Energy Inc.Southern California Edison CompanyEdison Mission EnergyEdison Mission Energy Petroleum
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Edison Mission Energy Services, Inc.Edison Mission Energy FuelEdison CapitalEdison InternationalLG&E Energy Inc.LG&E Power Inc.Kentucky Utilities CompanyWestern Kentucky Energy Corp.Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc.Florida Power Corporation d/b/a Progress Energy Florida, Inc.Ameren Energy Generating CompanyUnion Electric Company, d/b/a AmerenUEAmeren Energy Resources CompanyAmeren Energy Fuels And Services CompanyCentral Illinois Public Service Company, d/b/a AmerenCIPSCentral Illinois Light Company, d/b/a AmerenCILCOIllinois Power Company, d/b/a AmerenIPAmeren Energy Generating CompanyAmeren Energy Marketing CompanyEntergy Louisiana, LLCEntergy Mississippi, Inc.Entergy Power & Light CompanyEntergy Arkansas, Inc.System Energy Resources, Inc.Allegheny Power Service CorporationAllegheny Energy Supply Company LLCWest Penn Power CompanyThe Potomac Edison CompanyMonongahela Power CompanyAllegheny Energy Inc.Duke Energy Corp.FirstEnergy Corp.Ohio Edison CompanyThe Cleveland Electric Illuminating CompanyThe Toledo Edison CompanyPennsylvania Power CompanyJersey Central Power & Light Company
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Metropolitan Edison CompanyPennsylvania Electric CompanyVirginia Electric and Power CompanyConsolidated Natural Gas CompanyDominion Energy, Inc.Virginia Power Energy Marketing, Inc.Michigan Consolidated Gas CompanyThe Detroit Edison CompanyMichCon Gathering CompanyMichcon Fuel Services CompanyMichCon Enterprises, Inc.Florida Power & Light CompanyFPL Energy, LLCFPL Group Capital, Inc.AES Corp.Indianapolis Power & Light CompanyNRG Energy, Inc.Texas Genco, Inc.Texas Genco, LLCNRG Thermal LLCArch Coal, Inc.International Coal Group, Inc.Alliance Resource Partners LPAlpha Natural Resources Inc.CONSOL Energy Inc.Foundation Coal Holdings Inc.Massey Energy Co.Westmoreland Coal Co.Peabody Energy Corp.Natural Resource Partners LPWestern Fuels Association, Inc.Rio Tinto Energy America Inc.The North American Coal CorporationOhio Valley Coal Co.Peter Kiewit Sons’, Inc.BHP Minerals International Inc.
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Dated: May 7, 2010 /s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ........................................ iTABLE OF CONTENTS .......................................................................xiiiTABLE OF AUTHORITIES.................................................................. xivINTEREST OF AMICI CURIAE.............................................................. 1SUMMARY OF ARGUMENT .................................................................. 5ARGUMENT ............................................................................................ 6
A. Plaintiffs’ Claims Are Barred By The Political Question Doctrine .................................................................................. 61. The Political Question Doctrine Is A Core
Component Of A Justiciable Case Or Controversy ...... 62. Plaintiffs’ Attempt To Impose Industry-Wide
Liability Presents A Political Question ...................... 103. Plaintiffs Would Impermissibly Circumscribe The
Political Question Doctrine......................................... 214. Plaintiffs’ Unprecedented Claims Are
Fundamentally Different From Prior Tort Actions.... 25B. Plaintiffs’ Claims Would Lead To The Proliferation Of
Unadministrable Litigation................................................. 27C. Plaintiffs Lack Standing To Bring Their Claims ................ 30
CONCLUSION ....................................................................................... 33EXHIBIT A ............................................................................................. 34
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TABLE OF AUTHORITIES
CASES
Antolok v. United States, 873 F.2d 369 (D.C. Cir. 1989) .................10, 24
Baker v. Carr, 369 U.S. 186 (1962).....................................................8, 14
Bendix Autolite Corp. v. Midwesco Enterprises, Inc.,486 U.S. 888 (1988) ..............................................................................18
California v. Gen. Motors Corp., No. C06-05755 MJJ,2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007)............................................. 14, 15, 25, 27, 28
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009) ............................................................24
Chaser Shipping Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986), aff'd, 819 F.2d 1129 (2d Cir. 1987), cert. den’d, 484 U.S. 1004 (1988) ...................................................24, 25
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) ..............................................................................15
Cipollone v. Liggett Grp., 505 U.S. 504 (1992) .......................................20
Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated and reh’g en banc granted, 2010 U.S. App. LEXIS 4253 (5th Cir. Feb. 26, 2010) ....................22, 23
Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005),rev’d, 582 F.3d 309 (2d Cir. 2009)............................................ 14, 20, 27
Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007) ........................24
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DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................8, 22
Fin. Acquisition Ptnrs. v. Blackwell, 440 F.3d 278 (5th Cir. 2006) .......11
Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp.,95 F.3d 358 (5th Cir. 1996) ..................................................................31
Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) .................................26
Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972 (Miss. 2004)...................................................................27
Illinois v. Milwaukee, 599 F.2d 151 (7th Cir. 1979), rev’d on other grounds, 451 U.S. 304 (1981)........................................26
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986)........17
Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005 U.S. Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005) .....................27
Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008) .................................10
Little v. KPMG, 575 F.3d 533 (5th Cir. 2009) ........................................32
Massachusetts v. EPA, 549 U.S. 497 (2007)........................... 6, 17, 30, 31
Missouri v. Illinois, 200 U.S. 496 (1906).................................................26
Muskrat v. United States, 219 U.S. 346 (1911)........................................8
Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir)......14, 15, 18, 19, 21, 25, 27, 28
New Jersey v. New York, 283 U.S. 473 (1931) .......................................26
New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) ..............................................................................22
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Nixon v. United States, 506 U.S. 224 (1993) ....................................16, 23
O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994)...................................19
Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petrol., 577 F.2d 1196 (5th Cir. 1978) ..........................................................7, 24
Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971)..........................26
Perry v. Mercedes-Benz of N. Am., Inc., 957 F.2d 1257 (5th Cir. 1992) ..............................................................20
Rasul v. Bush, 542 U.S. 466 (2004)...........................................................7
Robinson v. TCI/US West Communications Inc., 117 F.3d 900 (5th Cir. 1997) ................................................................11
Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996)............31
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ......................32
United States v. Munoz-Flores, 495 U.S. 385 (1990) .............................24
Vieth v. Jubelirer, 541 U.S. 267 (2004)................................... 9, 14, 15, 23
Warth v. Seldin, 422 U.S. 490 (1975)......................................................32STATUTES
Miss. Code Ann. § 85-5-7.........................................................................16MISCELLANEOUS
Robert Bridge, Did Global Warming Help Bring Down Air France Flight 447?, RT (June 4, 2009)........................................................................28
Gene J. Koprowski, Global Warming Advocates Threaten Blizzard of Lawsuits., FOXNews (Mar. 28, 2010)..................................................28
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Harty Fish et al., The Relationship of Long Term Global Temperature Change and Human Fertility, Medical Hypotheses (2002).................28
Indira A.R. Lakshmanan, India to Resist U.S. Pressure on Carbon Emission Caps, Bloomberg.com (July 19, 2009)..................................12
Laurence H. Tribe et al., Too Hot for Courts To Handle: Fuel Temperatures, Global Warming,and the Political Question Doctrine(Wash. Legal Found., Working Paper No. 169, 2010) ..... 7, 8, 12, 16, 27
Restatement (Second) of Torts (1979).....................................................17
Seth Borenstein, Not So Windy: Research Suggests Winds Dying Down, Associated Press (June 10, 2009).........................................................28
The Federalist No. 47 (James Madison) ...................................................7
The Federalist No. 78 (Alexander Hamilton) ...........................................7
I.
INTEREST OF AMICI CURIAE
Amici curiae Edison Electric Institute (“EEI”), the American
Public Power Association (“APPA”), and the National Rural Electric
Cooperative Association (“NRECA”) each have electric utility members
throughout the nation that emit carbon dioxide in the course of
producing electricity. Amicus curiae National Mining Association
(“NMA”) has members throughout the nation that are integral to the
production of coal and agricultural minerals, the end use of which
results in greenhouse gas emission. Each is potentially affected by the
Panel’s open-ended holding regarding the justiciability of tort suits
arising from weather-related events.
EEI is a trade organization of U.S. Shareholder-Owned Electric
Companies whose members serve more than 90 percent of the ultimate
customers in the investor-owned segment of the electric utility industry,
and nearly 70 percent of all electric utility customers in the nation. EEI
is actively working with Congress on enactment of comprehensive
climate legislation that will achieve substantial economy-wide
greenhouse gas emission reductions while simultaneously promoting
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necessary advancements in climate-friendly technologies and helping to
maintain the reliability and affordability of the nation’s power supply.
APPA is the national service organization representing the
interests of the more than 2,000 not-for-profit municipal and other state
and local community-owned electric utilities that collectively provide
electricity to approximately 45 million Americans in 49 states. Seventy
percent of public power systems are located in cities with populations of
10,000 or less. APPA’s purpose is to advance the public policy interests
of its members and their consumers, and to provide member services to
ensure adequate, reliable electricity at a reasonable price with the
proper protection of the environment. Overall, public power accounts
for about 16 percent of all kilowatt-hour sales to retail electricity
consumers. Moreover, more than 90 percent of public power systems
meet the definition of and qualify as small businesses under the Small
Business Act and the Small Business Regulatory Enforcement and
Fairness Act of 1996.
NRECA is the national service organization that represents the
nation’s 930 not-for-profit, customer-owned rural electric cooperatives
serving more than 42 million electric consumers in 47 states. NRECA
3
was formed in 1942 by the nation’s rural electric cooperative leaders,
dedicated to electrifying vast regions of the country, and providing
reliable and affordable electric power through electric cooperative
entities. NRECA was organized specifically to mitigate wholesale
electric power shortages in rural areas. Electric cooperatives are
incorporated as private entities in states in which they reside and have
legal obligations to provide reliable electric service to their customer
members. Sixty-six rural electric cooperatives (G&Ts) generate and
transmit power to 668 of the 864 distribution cooperatives. The G&Ts
are owned by the distribution cooperatives they serve. The remaining
distribution cooperatives receive power directly from other generation
sources within the electric utility sector. Collectively, electric
cooperatives serve all or portions of 2,500 of the nation’s 3,128 counties
and their service areas cover 75 percent of the U.S. landmass. Over 96
percent of the electric cooperatives are considered small entities under
the Small Business Regulatory Enforcement and Fairness Act of 1996.
NMA is a national trade association of mining and mineral
processing companies. NMA’s membership includes the producers of
most of the nation’s coal, metals, industrial and agricultural minerals,
4
the manufacturers of mining and mineral processing machinery,
equipment and supplies, and the engineering and consulting firms,
financial institutions and other firms serving the mining industry.
Pursuant to Federal Rule of Appellate Procedure 29(a), Amici
Curiae state that all parties have consented to the filing of this brief.
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II.
SUMMARY OF ARGUMENT
Plaintiffs concede that they filed this suit because of their
perceived need for “meaningful political action.” Third Amended
Complaint (“TAC”) ¶ 20 (emphasis added). Unfortunately, rather than
pursue political action through political means, Plaintiffs seek judicial
redress against more than thirty companies whose emissions they
allege entered “Earth’s atmosphere” and contributed to a change in the
“Earth’s climate,” which in turn allegedly caused “warm waters and
warm environmental conditions . . . in the Atlantic Ocean,” all of which
they allege “direct[ly] and proximate[ly]” exacerbated the intensity of
Hurricane Katrina. TAC ¶¶ 4, 5, 15. Plaintiffs’ suit is part of a broader
movement to circumvent the political process and judicially regulate
greenhouse gas emissions.
Plaintiffs’ claims are “political questions” that do not fall within
the Article III jurisdiction of the federal judiciary. In this regard, the
federal judiciary is not the appropriate forum for defining acceptable
levels of greenhouse gas emissions or for determining which parties, if
any, should bear the responsibility and costs of remediating the impacts
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of global climatological processes that are allegedly influenced by
hundreds of years of industrial activity. These determinations are
outside the judicial sphere, lack any ascertainable basis in law, and
necessarily involve antecedent policy determinations.
Additionally, for the reasons set forth in Defendants’
Supplemental Brief, Plaintiffs lack Article III standing to maintain this
action. Massachusetts v. EPA, 549 U.S. 497 (2007), an action by
sovereign states seeking to vindicate procedural rights established by
statute, does nothing to support Plaintiffs’ putative common law claims.
Similarly, the Panel incorrectly relaxed Article III’s constitutional
standing requirements by misapplying controlling Fifth Circuit and
Supreme Court precedent.
III.
ARGUMENT
A. Plaintiffs’ Claims Are Barred By The Political Question Doctrine
1. The Political Question Doctrine Is A Core Component Of A Justiciable Case Or Controversy
Article III of the Constitution assigns the “judicial power of the
United States” to the federal courts. From the earliest days of our
Republic, the federal courts have been understood to be courts of limited
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jurisdiction: “‘They possess only that power authorized by Constitution
and statute, which is not to be expanded by judicial decree.’” Rasul v.
Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994)).
In this regard, the Framers recognized the inherent “limitation of
the judiciary as a decisional body.” Occidental of Umm al Qaywayn, Inc.
v. A Certain Cargo of Petrol., 577 F.2d 1196, 1203 (5th Cir. 1978).
James Madison described one important example of such a limitation,
that “judges can exercise no executive prerogative . . . nor any
legislative function, though they may be advised with by the legislative
councils.” The Federalist No. 47, at 224 (James Madison) (Hallowell
1842). Rather, “[t]he courts must declare the sense of the law . . . [for] if
they should be disposed to exercise will instead of judgment, the
consequence would equally be the substitution of their pleasure to that
of the legislative body.” The Federalist No. 78, at 358 (Alexander
Hamilton) (Hallowell 1842). As a result, “it has been axiomatic
throughout our constitutional history that there exist some questions
beyond the proper reach of the judiciary.” Laurence H. Tribe et al., Too
Hot for Courts To Handle: Fuel Temperatures, Global Warming, and
8
the Political Question Doctrine 3 (Wash. Legal Found., Working Paper
No. 169, 2010).1
One of the fundamental limitations on the federal judiciary is
found in the political question doctrine, which “originate[s] in Article
III’s ‘case’ or ‘controversy’ language.” DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 352 (2006). An Article III “case or controversy” requires
the existence of legal principles that define the relationship among
parties, which allows the allocation of liability and the fashioning of
remedies. See, e.g., Muskrat v. United States, 219 U.S. 346, 361 (1911).
Where responsibility cannot be assigned or an injury remedied absent
the antecedent existence of legal principles reflecting particular policy
judgments, the matter falls beyond the judicial power as authorized by
Article III. See Tribe, supra, at 3 (citing Marbury v. Madison, 5 U.S. (1
Cranch) 137, 170 (1803), and Baker v. Carr, 369 U.S. 186, 217 (1962)).
Expounding upon these constitutional principles, the Supreme
Court in Baker v. Carr, 369 U.S. at 217, recognized six circumstances
that place a case outside Article III jurisdiction:
1 Available at: http://www.wlf.org/Upload/legalstudies/workingpaper/012910Tribe_WP.pdf.
9
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing the lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Each of these tests illuminates the constitutional limits of the “judicial
powers” of Article III. Some of them reflect the inherent restrictions on
judicial powers; other restrictions are anchored in the fact that judicial
authority does not extend to matters that are properly the subject of the
legislative and executive powers assigned by Articles I and II to the
political branches. When any is met, the matter falls beyond the proper
reach of the judiciary. See Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)
(plurality) (Baker sets forth “six independent tests for the existence of a
political question”).
As such, and as with all other applications of the case or
controversy principle, the Court must undertake a “discriminating
10
inquiry” to identify the specific questions that the matter would require
the Court to answer to adjudicate the case. Lane v. Halliburton, 529
F.3d 548, 564-65 (5th Cir. 2008). Tort claims may easily state political
questions. See, e.g., Antolok v. United States, 873 F.2d 369, 383 (D.C.
Cir. 1989) (Sentelle, J., opinion for the court) (“Were we to follow
plaintiffs’ view, there would hardly be a political question doctrine left.
As this is a tort case, so was [United States v.] Belmont [301 U.S. 324
(1937)] a contract action and Oetjen [v. Central Leather Co., 246 U.S.
297 (1918)] an action for replevin.”).
2. Plaintiffs’ Attempt To Impose Industry-Wide LiabilityPresents A Political Question
Plaintiffs’ Third Amended Complaint targets thirty companies
Plaintiffs allege contributed to the global pool of greenhouse gases
which, Plaintiffs allege, “has ‘demonstrably changed’” the “Earth’s
climate,” thereby “direct[ly] and proximate[ly]” causing an increase in
the strength of Hurricane Katrina. TAC ¶¶ 5, 15. In a proposed Fourth
Amended Complaint, Plaintiffs target an additional 110 companies.
It is indisputable that hurricanes and other storms have always
occurred due to natural atmospheric and climatological processes. It is
also indisputable that countless human activities and innumerable
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natural sources around the planet are responsible “for the emissions of
[carbon dioxide] and ultimately greenhouse gases” about which
Plaintiffs complain. Rec. Doc. 373 at 36. Plaintiffs concede that
emissions from natural and anthropogenic sources are undifferentiated
and accumulate in the planetary atmosphere. See TAC ¶¶ 3-5 (alleging
impacts on concentrations in “Earth’s atmosphere” and on “Earth’s
climate”). Plaintiffs also concede that climatic trends are influenced not
only by natural causes, but by hundreds of years of accumulated
natural and anthropogenic emissions. See TAC ¶ 9 (pleading increases
in “atmospheric concentrations . . . [since] the outset of the Industrial
Revolution”); see TAC Ex. 1, p. 4 (“Human activities have increased the
atmospheric concentrations of greenhouse gases and aerosols since the
pre-industrial era.”).2
Defendants-Appellees’ greenhouse gas emissions are the necessary
result of producing reliable, safe, and affordable energy through lawful
means, including fossil fuel combustion. Many Defendants have a “duty
2 Courts are permitted to consider attachments to the Complaint and matters of public record in deciding motions to dismiss under Rule 12(b)(6). See Fin. Acquisition Ptnrs. v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). In deciding motions to dismiss under Rule 12(b)(1), courts may also consider undisputed facts evidenced in the record and may resolve disputed facts. See Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997).
12
to serve” their customers, and their mix of fuels for electric generation
activities, including the attendant carbon emissions, are driven by that
obligation. Energy production and the manufacture of basic products
essential to everyday health and welfare all depend on processes that
generate greenhouse gases. Indeed, the principal reason why
developing nations around the world resist restrictions on their
greenhouse gas emissions is that those restrictions would retard their
economic development and reduce their standards of living.3 Given the
inherently global nature of the fossil fuel-based economy, it is also well-
established that, without an international approach, greenhouse gas
reductions in one country may simply be offset by increased greenhouse
gas emissions elsewhere. See Tribe, supra, at 17-18 (discussing
“phenomenon of ‘carbon leakage,’ whereby poorly thought out carbon
reductions in one section of the global economy result in increased
emissions elsewhere”) (emphasis in original).4
3 E.g., Indira A.R. Lakshmanan, India to Resist U.S. Pressure on Carbon Emission Caps, Bloomberg.com (July 19, 2009). 4 Depending on the relative carbon efficiencies of the United States and the nation to which industry migrates, the leakage phenomenon may lead to a net increase in carbon emissions.
13
Against this backdrop, the District Court held that adjudication of
Plaintiffs’ suit presents a political question, and therefore falls outside
of the Article III judicial power, for two reasons: (i) there are no
judicially discoverable and manageable standards for resolving the case;
and (ii) the suit could not be judicially resolved absent an initial policy
determination of a kind clearly for nonjudicial discretion. Rec. Doc. 373
at 39-40. Taking these factors into account, the District Court correctly
explained that the allocation of responsibility for addressing global
climate change is a “debate which simply has no place in court.” Rec.
Doc. 373 at 39. Instead,
until such time as Congress enacts legislation which sets appropriate standards by which this Court can measure conduct, whether it be reasonable or unreasonable, and, more important, develops standards by which . . . juries can adjudicate facts and apply the law . . . and judge whether conduct crosses the line between reasonable and legal conduct and unreasonable or tortious conduct . . . . [these issues] are best left to the executive and to the legislative branches of the government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.
Rec. Doc. 373 at 39-40.
14
The District Court’s decision is consistent with Native Village of
Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009),
appeal pending, No. 09-17490 (9th Cir), Connecticut v. Am. Elec. Power
Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), rev’d, 582 F.3d 309 (2d Cir.
2009), and California v. General Motors Corp., No. C06-05755 MJJ,
2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007). Indeed, every
district court to consider the implications of adjudicating greenhouse
gas tort claims has determined that they present political questions.
These courts’ measured and prudent refusal to embroil the judiciary in
making climate policy is correct.
a. There Are No Judicially Manageable Standards For
Deciding Plaintiffs’ Claims. The second Baker test, “lack of satisfactory
criteria for a judicial determination,” is a “dominant consideration[]” in
determining the existence of a political question. Baker, 369 U.S. at
210 (quoting Coleman v. Miller, 307 U.S. 433, 454-55 (1939)). In fact,
the Supreme Court found a non-justiciable political question based
exclusively on the “lack of judicially discoverable and manageable
standards” in its most recent political question case. Vieth, 541 U.S. at
278 (plurality).
15
As the Supreme Court has explained, courts are without guidance
for resolving questions that are “delicate, complex, and involve large
elements of prophecy,” Chicago & Southern Air Lines, Inc. v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948), or that would plunge them into a
“sea of imponderables,” Vieth, 541 U.S. at 290 (plurality). One could
scarcely imagine claims more protean and imponderable than Plaintiffs’
claims. Plaintiffs ask the Court to determine the “reasonable” level of
emissions for defendants’ contributions to the “sum of carbon dioxide in
the Earth’s atmosphere.” California, 2007 U.S. Dist. LEXIS 68547, at
*46. But such a determination would require a jury to evaluate “the
energy producing alternatives that were available in the past and
consider their respective impact on far ranging issues such as their
reliability as an energy source, safety considerations and the impact of
the different alternatives on consumers and business.” Kivalina, 663 F.
Supp. 2d at 874. Against that, the jury would “then have to weigh the
benefits derived from those choices against the risk that increasing
greenhouse gases would in turn increase the risk of” the alleged harm,
which in this case, is the intensification of hurricanes. Id. at 874-875.
Moreover, the jury would then have to determine that any lower level of
16
emissions by Defendants would not have been offset, or even exceeded,
by foreign competitors’ increased emissions. See Tribe, supra, at 17-18.
Still more imponderables arise when one considers that, in order
to adjudicate Plaintiffs’ claims under Mississippi’s pure comparative
fault system, a jury would need to determine the percentage of fault
attributable to all emitters of greenhouse gases (presumably in the
world), including non-parties and immune parties. Miss. Code Ann.
§ 85-5-7(2). Once again, this would require the jury to determine what
would be a “reasonable” level of emissions, not only for Defendants, but
for all of the other emitters, past and present, against which their
conduct must be measured.
The “difficulty of fashioning relief” also bespeaks the lack of
judicially discoverable and manageable standards. Nixon v. United
States, 506 U.S. 224, 236 (1993). Courts, by their nature, are unable to
remediate the “conceptual and methodological mismatch” between
judicial relief and climate change. See Tribe, supra, at 21. As Professor
Tribe notes:
Courts are incapable, as a matter of due process, of binding anyone other than the litigants before them . . . [which] automatically makes them institutionally ill-suited to entertain lawsuits
17
concerning problems this irreducibly global and interconnected in scope.
Id. This palpable lack of institutional competence is further evidence
that Plaintiffs’ global warming nuisance suit presents a non-justiciable
political question.
b. Plaintiffs’ Claims Would Necessitate An Inappropriate
Initial Policy Determination By The Judiciary. Courts are
“fundamentally underequipped to formulate national policies or develop
standards for matters not legal in nature.” Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 (1986) (quotation omitted). Courts
“have neither the expertise nor the authority to evaluate . . . policy
judgments” concerning whether and how to regulate greenhouse gas
emissions. Massachusetts, 549 U.S. at 533. Adjudicating Plaintiffs’
claims would require the court to make numerous policy determinations
of a kind that only the legislative and executive branches are capable of
making.
First, the Court would have to make the policy determination that
the purported harms of the economic activity in which Defendants
engage outweigh its proven benefits. See Restatement (Second) of Torts
§ 821B cmt. e (1979) (describing a necessary “weighing of the gravity of
18
the harm against the utility of the conduct” to decide Plaintiffs’ claims).
This determination is far beyond the reasonableness and balancing
determinations competently made by jurors in ordinary nuisance cases.
Here, the weighing would require the jury or court to balance the social
utility and costs of industrial, agricultural, and individual activities
throughout the nation, if not the globe, that are only remotely related (if
at all) to the alleged harm. See Kivalina, 663 F. Supp. 2d at 876
(finding the need for an initial policy determination because
adjudication “requires balancing the social utility of Defendants’
conduct with the harm it inflicts”).
Even if one accepts Plaintiffs’ theory of causation, determining
whether Defendants’ methods for providing affordable, reliable energy
(or the frequency with which they use those methods) are more or less
socially beneficial than the alleged loss of private property to rising sea
levels is inherently an open-ended policy determination akin to “judging
whether a particular line is longer than a particular rock is heavy.”
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897
(1988) (Scalia, J., dissenting).
19
Balancing these competing interests on an inherently national
and international scale requires a policy judgment the political
branches have struggled for decades to make. It cannot properly,
effectively and reasonably be made by a fact finder simply asking what
is “reasonable.” See, e.g., California, 2007 U.S. Dist. LEXIS 68547, at
**23-24; accord O’Melveny & Myers v. FDIC, 512 U.S. 79, 89 (1994)
(refusing to create federal common law tort malpractice liability
standards because “[w]hat sort of tort liability to impose on lawyers and
accountants . . . who provide services to federally insured financial
institutions . . . ‘involves a host of considerations that must be weighed
and appraised’” and “‘is more appropriately for those who write the
laws, rather than for those who interpret them’”) (quoting Northwest
Airlines, Inc. v. Transport Workers, 451 U.S. 77, 98 n.41 (1981)).
Second, the Court would have to make a policy determination as
to whether particular types of greenhouse gas emissions limits should
be or should have been imposed on emitters—the very same policy
determination with which the political branches are currently
grappling. See Kivalina, 663 F. Supp. 2d at 876-77 (adjudicating
common law greenhouse gas claims requires the court to make a policy
20
judgment of a legislative nature about what kind of GHG emissions
limits should have been imposed, rather than to resolve the dispute
through legal and factual analysis); Connecticut, 406 F. Supp. 2d at 272
(noting the “transcendently legislative nature of this litigation”).
Plaintiffs’ argument that adjudication of their claims would not
require the district court to fix and impose emission standards upon
Defendants is disingenuous. Any reasonableness determination would
establish a de facto standard for Defendants’ emissions, for the 140-plus
entities named in Plaintiffs’ proposed Fourth Amended Complaint, and
for the multitude of other emitters that could be brought before this or
other federal courts. See, e.g., Cipollone v. Liggett Grp., 505 U.S. 504,
521 (1992) (“State regulation can be as effectively exerted through an
award of damages as through some form of preventive relief.”)
(quotations and alterations omitted); Perry v. Mercedes-Benz of N. Am.,
Inc., 957 F.2d 1257, 1265 (5th Cir. 1992) (holding that an action for
damages may amount to a form of regulation).
Third, the Court would need to make the policy determination
that the parties that Plaintiffs chose to sue should be required to bear
the cost of remedying any harms that Plaintiffs can prove were caused
21
by greenhouse gas emissions. See Kivalina, 663 F. Supp. 2d at 877
(“Plaintiffs are . . . asking this Court to make a political judgment that
the two dozen Defendants named in this action should be the only ones
to bear the cost of contributing to global warming . . . the allocation of
fault—and cost—of global warming is a matter appropriately left for
determination by the executive or legislative branch in the first
instance.”). Amici are unaware of any prior common law nuisance suit
proceeding to adjudication that was premised on causation theories in
which massive contributions by non-parties over hundreds of years
were essential to the plaintiffs’ claims of harm. Moreover, the fact that
all but a tiny fraction of the emissions that allegedly caused Plaintiffs
harm were emitted by non-parties compounds the impossibility of
determining a “reasonable” level of emissions without an initial policy
determination by the elected political branches.
3. Plaintiffs Would Impermissibly Circumscribe The Political Question Doctrine
Plaintiffs argue that this action is justiciable because actions
involving adjudication of individual rights have not been committed by
the Constitution to Congress or the President. See Plaintiffs-Appellants
Supplemental Brief (“Pls. Supp. Br.”) at 14, adopting panel decision in
22
Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated and
reh’g en banc granted, 2010 U.S. App. LEXIS 4253 (5th Cir. Feb. 26,
2010). Plaintiffs’ reasoning bespeaks a wholesale misunderstanding of
the scope of the political question doctrine.
First, Plaintiffs’ argument proceeds from the faulty assumption
that, because “citizens have a right to ask courts to resolve private
disputes,” Pls. Supp. Br. at 8, “‘federal courts lack the authority to
abstain from the exercise of jurisdiction’” in this case. Comer, 585 F.3d
at 872 (quoting New Orleans Pub. Serv., Inc. v. Council of the City of
New Orleans, 491 U.S. 350, 358 (1989) (“NOPSI”)). But the political
question doctrine is not an exception to broadly-conferred jurisdiction,
nor is it a prudential abstention doctrine like that considered by the
Supreme Court in NOPSI. It is a foundational element of the Article III
judicial power. See DaimlerChrysler, 547 U.S. at 352 (political question
doctrine has its “origins in Article III’s ‘case’ or ‘controversy’ language”).
Second, Plaintiffs wrongly suggest that Article III jurisdiction
necessarily exists unless a “material issue is exclusively committed by
the Constitution or federal laws to the federal political branches.” Pls.
Supp. Br. at 14 (noting that because this case involves “tort claims . . .
23
further inquiry under each Baker formulation was unnecessary.”);
Comer, 585 F.3d at 875. Plaintiffs’ argument misconstrues Supreme
Court precedent. When the Supreme Court stated in Nixon v. United
States, 506 U.S. 224, 228 (1993), cited in Comer, 585 F.3d at 875, that it
“must begin” by “‘interpret[ing] the [constitutional] text in question and
determin[ing] whether and to what extent the issue is textually
committed’ to a political branch,” it did so in the context of considering
two Baker factors—textual commitment, and lack of judicially
discoverable and manageable standards—that were themselves
independently sufficient for the Court to conclude that the case was a
political question. See Vieth, 541 U.S. at 277 (plurality) (the Baker
factors are “six independent tests for the existence of a political
question”) (emphasis added). As such, the Nixon Court’s statement
stands for no more than the unremarkable proposition that where a
party argues that an issue is textually committed to a political branch,
the Court must start with the text in question.
Third, Plaintiffs err in suggesting that the political question
doctrine does not apply where individual rights are at issue. See Pls.
Supp. Br. at 14, 18; Comer, 585 F.3d at 870-71. In fact, as noted above,
24
the question of whether individual rights are directly implicated by a
suit “is simply irrelevant to the political question doctrine.” See United
States v. Munoz-Flores, 495 U.S. 385, 393-94 (1990). The label affixed
to a claim does not demonstrate that there are judicially discoverable
and manageable standards to resolve them. See Antolok, 873 F.2d at
383-84 (holding that a tort action presented a political question where
“the political nature of” the issues raised were of the type where “the
Judiciary has no expertise.”). Moreover, many courts have applied the
political question doctrine in tort cases. See, e.g., Occidental, 577 F.2d
1196 (5th Cir. 1978) (political question doctrine barred tortious
conversion claims); Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir.
2007) (political question doctrine barred claims for torts in violation of
international law); Carmichael v. Kellogg, Brown & Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009) (political question doctrine barred tort
claims arising from automobile accident); Chaser Shipping Corp. v.
United States, 649 F. Supp. 736, 738 (S.D.N.Y. 1986) (“Even though
awarding tort damages is a traditional function for the judiciary, it is
apparent that there is a clear lack of judicially discoverable and
25
manageable standards for arriving at such an award.”), aff’d, 819 F.2d
1129 (2d Cir. 1987), cert. den’d, 484 U.S. 1004 (1988).
4. Plaintiffs’ Unprecedented Claims Are Fundamentally Different From Prior Tort Actions
Contrary to Plaintiffs’ claims, this is not “just another tort case.”
Plaintiffs would unmoor the concept of tort from any precedent by (i)
predicating their theory of liability on the emission of greenhouse gases
into the global atmosphere, see TAC ¶ 3; and then (ii) pinning their
alleged injuries on a tenuous chain of events with the harm caused
indirectly through weather events that are allegedly intensified by this
undifferentiated body of emissions, rather than by virtue of their
presence or concentration on Plaintiffs’ property, see TAC ¶¶ 31, 40.
Jurors would be charged not with determining what would be an
unreasonable conduct by a defined number of sources with respect to a
finite area or region in which their conduct had the alleged effect, but
with “determining what is an unreasonable contribution to the sum of
carbon dioxide in the Earth’s atmosphere.” California, 2007 U.S. Dist.
LEXIS 68547, at *46; see also Kivalina, 663 F. Supp. 2d at 874-75.
Plaintiffs’ claims thus fundamentally differ from the
transboundary pollution cases on which they rely. In each of those
26
cases, the claims were justiciable and governed by judicially
manageable standards because they were based on discrete lines of
causation from individual sources to their alleged injuries that unfolded
in a specified distance and time. See Illinois v. Milwaukee, 599 F.2d
151, 167, 169 (7th Cir. 1979) (Illinois alleged that Milwaukee’s sewage
discharges directly flowed to and invaded Illinois properties, infecting
waters used for drinking and swimming), rev’d on other grounds, 451
U.S. 304 (1981); Georgia v. Tennessee Copper Co., 206 U.S. 230, 236
(1907) (Georgia alleged that “forests, orchards and crops” were harmed
by an open smelting pit several miles from the Tennessee-Georgia
border); Missouri v. Illinois, 200 U.S. 496, 517 (1906) (Missouri alleged
that Illinois directed sewage from Chicago into an artificial channel
that flowed into the Mississippi River where it “deposited” and
contaminated property and waterways used for drinking, agriculture
and manufacturing); Ohio v. Wyandotte Chems. Corp., 401 U.S. 493
(1971) (defendant companies dumped chemicals into streams that
flowed directly into Lake Erie, damaging Ohio property); New Jersey v.
New York, 283 U.S. 473, 476 (1931) (New York released “noxious,
offensive and injurious materials . . . into the ocean,” and those discrete
27
materials were “cast upon the beaches . . . causing great and irreparable
injury”).5 The distinction between Plaintiffs’ claims and traditional
transboundary nuisance cases is well recognized and makes Plaintiffs’
claims incapable of a principled, rational resolution based upon
reasoned distinctions. See Tribe, supra, at 15 (“[C]limate change
results only from the non-linear, collective impact of millions of
fungible, climactically [sic] indistinguishable, and geographically
dispersed emitters.”).
B. Plaintiffs’ Claims Would Lead To The Proliferation Of Unadministrable Litigation
Plaintiffs’ claims are part of a growing, and highly troubling, trend
of litigation by States and private parties around the country to
regulate through common law tort litigation. See Kivalina, 663 F.
Supp. 2d 863; Connecticut, 406 F. Supp. 2d 265; California, 2007 U.S.
Dist. LEXIS 68547; Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005 U.S.
Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005).
Allowing Plaintiffs’ claims to proceed would subvert the political
branches’ role in one of the most controversial policy issues of our time.
5 See also Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972 (Miss. 2004) (plaintiffs alleged that their properties were flooded by water released when the Mobile Water Authority opened a dam).
28
Plaintiffs will be quick to continue their abandonment of the democratic
process in favor of litigation. The costs of bringing suit are minimal.
Previous litigants have “cut-and-pasted” complaints nearly in whole,
compare Plaintiffs’ Complaints in Connecticut, and Korsinsky (Dkt # 1),
and in part, compare Plaintiffs’ Complaints in Connecticut, California,
and Kivalina (Exhibit A).
And there is no shortage of potential plaintiffs. Global climate
change is alleged to cause everything from male infertility,6 to airplane
crashes,7 to decreased winds,8 to say nothing of a crop failure in Austin,
Texas, a flood in Jackson, Mississippi, or a tornado in New Orleans. In
fact, environmental groups have been public about their plans to file
more such suits.9
Similarly, there is no logical reason to expect potential plaintiffs to
draw the line at the thirty defendants named in the Third Amended
6 Harty Fish et al., The Relationship of Long Term Global Temperature Change and Human Fertility 21-28, Medical Hypotheses (2002).7 Robert Bridge, Did Global Warming Help Bring Down Air France Flight 447?,, RT (June 4, 2009), available at http://rt.com/Top_News/2009-06-04/Did_global_warming_help_bring_down_Air_France_flight_447.html.8 Seth Borenstein, Not So Windy: Research Suggests Winds Dying Down, Associated Press (June 10, 2009), available at http://www.physorg.com/print163835515.html.9 Gene J. Koprowski, Global Warming Advocates Threaten Blizzard of Lawsuits, FOXNews (Mar. 29, 2010), available at http://www.foxnews.com/scitech/2010/03/29/global-warming-advocates-threaten-blizzard-lawsuits/.
29
Complaint, as opposed to the 140-plus defendants named in the Fourth
Amended Complaint, the 500 defendants that may be named in a Fifth
Amended Complaint, or even 10,000 defendants. If litigation is the
appropriate response to global climate change, it is no exaggeration to
say that the only appropriate litigation would be the war of all against
all, with virtually every natural and corporate person worldwide as
simultaneous plaintiffs and defendants. Plaintiffs themselves could be
counterclaim defendants, since each “contributes” to global
concentrations of carbon dioxide and other greenhouse gases.
Equally troubling, adjudicating global climate change tort claims
would almost certainly result in different courts establishing different
levels of, and rules for calculating, “reasonable” emissions for the same
class of facilities. Article III was never intended to allow different
courts, each striking what they perceive to be a “reasonable” balance
between utility and harm, to set inconsistent emission standards for
sources in other states throughout the country. Such an outcome is
untenable for potential defendants and another illustration of why this
matter exceeds the proper role of the federal judiciary.
30
C. Plaintiffs Lack Standing To Bring Their Claims
Amici agree with Defendants that the district court properly
determined that Plaintiffs lack Article III standing. Amici wish only to
highlight several fundamental errors in the Panel’s reasoning: its
misconstruction of Massachusetts v. EPA, 549 U.S. 497; its failure to
follow Fifth Circuit jurisprudence requiring a specific geographical
nexus to support standing; and its failure to recognize that Plaintiffs’
allegations were unduly speculative.
The Supreme Court’s decision in Massachusetts was predicated on
three key factors that are absent in this action. First, the Court noted
the Massachusetts plaintiff States “are not normal litigants for the
purposes of invoking federal jurisdiction,” and that each State’s “stake
in protecting its quasi-sovereign interests” entitles it “to special
solicitude” in establishing Article III standing. 549 U.S. at 518, 520.
Second, the Massachusetts plaintiff States invoked a congressionally-
articulated chain of causation to demonstrate that their claims were
traceable to EPA’s conduct. See 549 U.S. at 516 (“Congress has the
power to define injuries and articulate chains of causation that will give
rise to a case or controversy where none existed before.”) (quoting Lujan
31
v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J.,
concurring)). Third, the Massachusetts plaintiff States benefitted from
the relaxed procedural standing afforded to “litigant[s] to whom
Congress has accorded a procedural right.” 549 U.S. at 518 (internal
quotations omitted).
Without the “thumb on the scale” provided by these factors, the
Massachusetts plaintiff States would not have been able to establish
Article III standing. For these reasons as well as those advanced by
Defendants, Massachusetts does not support standing here.
The Panel’s reliance on this Court’s Clean Water Act
jurisprudence is similarly flawed. This Court has required a specific
geographic or other causative nexus between effluent discharges and
plaintiffs’ injuries where the water body in question is sufficiently large.
See Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp., 95 F.3d 358,
361 (5th Cir. 1996) (finding no standing where the “‘waterway’ is too
large to infer causation solely from the use of some portion of it”); cf.
Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 558 n.24 (5th Cir.
1996). In the case of greenhouse gas emissions, which are
32
undifferentiated and mix uniformly in the upper atmosphere, Plaintiffs
do not and cannot articulate a geographic or causative nexus.
Finally, the Panel’s decision ignores the principle that plaintiffs
lack standing where their theory of liability is based on speculation
about the actions of third parties. See Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490, 509 (1975).
Regardless of how this Court or any other federal court rules, the
growing number of greenhouse gas emitters in China, India, and other
developing nations are unlikely to sacrifice their nations’ economic
development to accommodate Plaintiffs. Thus, Plaintiffs’ alleged
injuries would have occurred regardless of whether Defendants had
voluntarily limited their emissions to an as-yet-to-be-determined
“reasonable” level. See Little v. KPMG, 575 F.3d 533 (5th Cir. 2009)
(claims for standing are unduly speculative where “claim of injury
depends on several layers of decisions by third parties”).
33
IV.
CONCLUSION
For the foregoing reasons, the court should affirm the District
Court’s decision.
/s/ Ed R. Haden (w/ consent)Ed R. Haden Jonathan P. DyalBalch & Bingham LLP1901 Sixth Avenue North, Suite 1500Birmingham, AL 35203-4642(205) 251-8100
Respectfully submitted,
/s/ David B. Rivkin, Jr.David B. Rivkin, Jr.Mark W. DeLaquilBaker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
/s/ F. William Brownell (w/ consent)F. William BrownellNorman W. FichthornShawn Patrick ReganAlison D. WoodHunton & Williams LLP1900 K Street, NWWashington, DC 20006-1109(202) 955-1500
/s/ Douglas A. Henderson (w/ consent)Douglas A. HendersonTroutman Sanders LLP600 Peachtree Street, Suite 5200Atlanta, GA 30308-2216(404) 885-3000
Counsel for Amici Curiae
EXHIBIT A
Connecticut v. AEP California v. General Motors Corp.
Kivalina v. ExxonMobil Corp.
Public Nuisance
Defendants, by their emissions of carbon dioxide . . . are knowingly, intentionally or negligently creating, maintaining or contributing to a public nuisance—global warming—injurious to the plaintiffs and their citizens and residents. Comp. ¶ 153, p. 43.
Defendants, by their emissions of carbon dioxide and other greenhouse gases from the combustion of fossil fuels in passenger vehicles and trucks, have knowingly created or contributed to and are knowingly creating or contributing to a public nuisance—global warming—injurious to the State of California, its citizens and residents. Sec. Amend. Comp. ¶ 58, p. 12.
IPCC
For example, the Intergovernmental Panel on Global warming (“IPCC”) concluded in its most recent assessment report, issued in 2001 (“IPCC 2001 Report”), that most of the observed warming over the last 50 years is likely to have been due to the increase in greenhouse gas concentrations.” “Likely” is an IPCC term of art meaning that scientists have a confidence level of 66-90%. Comp. ¶ 80, p. 22.
For example, the Intergovernmental Panel on Global warming (“IPCC”) concluded in its most recent assessment report, issued in 2001 (“IPCC 2001 Report”), that most of the observed warming over the last 50 years is likely to have been due to the increase in greenhouse gas concentrations.” “Likely” is an IPCC term of art meaning that scientists have a confidence level of 66 to 90 percent. Sec. Amend. Comp. ¶ 24, pp. 5-6.
35
Connecticut California Kivalina
Role of Defendants
Such management, direction, conduct and/or control is exercised through a variety of means, including through implementation by AEP and AEP Service employees and/or agents of policies, procedures, and programs relating to global warming generally, to carbon dioxide emissions specifically. Comp. ¶ 18, pp. 5-6.
Such management, direction, conduct and/or control is exercised through a variety of means, including through implementation by BP p.l.c. employees and/or agents of policies, procedures, and programs relating to global warming generally, to carbon dioxide emissions specifically. Comp. ¶ 24, p. 6.
History of CO2
Carbon dioxide levels have increased 35 percent since the beginning of the industrial revolution in the late 1800s. More than one-third of this increase has occurred since 1980 alone. The current carbon dioxide level in the atmosphere is higher than any time in the last 650,000 years, and likely higher than any time in the last 20 million years. Sec. Amend. Comp. ¶ 30, p.7
Carbon dioxide levels in the atmosphere have increased by 35 percent since the dawn of the industrial revolution in the 18th century, and more than one-third of the increase has occurred since 1980. The current level of carbon dioxide in the atmosphere is higher than at any time in the last 650,000 years. Comp. ¶ 125, p. 31.
36
Connecticut California Kivalina
Interstate
Carbon dioxide emissions and global warming are inherently interstate in nature. Defendants’ emissions of carbon dioxide, from any state where their electric generation operations may be located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide worldwide. Comp. ¶ 155, p. 44
Carbon dioxide and other greenhouse gas emissions resulting in global warming are inherently interstate in nature. Emissions of carbon dioxide and other greenhouse gases from defendants’ products, no matter where such products are operated, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide. Sec. Amend. Comp. ¶ 60, p. 13
Interference
Defendant [X] has engaged and continues to engage in intentional and/or negligent acts or omissions that injuriously affect the safety or health of the public or work a substantial annoyance, inconvenience, or injury to the public, and is therefore liable under the common law of public nuisance of the State of [Y]. Comp. ¶ 169, p. 45
Defendants have engaged and continue to engage in intentional or negligent acts or omissions that unreasonably interfere with the use and enjoyment of Plaintiffs’ properties, and/or work a substantial annoyance, inconvenience, or injury to the public, and are therefore liable under the applicable state statutory and/or common law of private and public nuisance. Comp. ¶ 265, p. 64.
CERTIFICATE OF SERVICE
I hereby certify that on May 7, 2010, I electronically filed the
foregoing document with the Clerk of the Court for the United States
Court of Appeals for the Fifth Circuit by using the appellate CM/ECF
system. Participants in the case who are registered CM/ECF users will
be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not
registered CM/ECF users. Accordingly, on May 7, 2010, I served a
paper copy and an electronic copy of same by United States mail,
postage prepaid, on the following persons:
David Lee Martindale15202 Hillside ParkwayCypress, TX 77433-5608
Ben H. StoneBalch & Bingham, LLP1310 25th AvenueGulfport, MS 39501-0000
Raymond Michael RippleSuite D-70121007 Market StreetWilmington, DE 19898-0000
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Donna L. GoodmanDuPont LegalSuite D-70141007 Market StreetWilmington, DE 19898-0000
Lawrence E. AbbottAbbott, Simses & KuchlerSuite 2005100 Village WalkCovington, LA 70433-0000
Paul C. ThibodeauxBenjamin Melvin CastorianoKerry J MillerFrilot LLC1100 Poydras StreetSuite 3700New Orleans, LA 70163-3600
John F. DaumO'Melveny & Myers400 S Hope StreetLos Angeles, CA 90071-0000
Robert Allen Long, Jr.Covington & Burling, LLP1201 Pennsylvania Avenue, N.W.Washington, DC 20004-2401
Anthony Michael WilliamsMichael Raudon PhillipsLouis Matthew GrossmanKean, Miller, Hawthorne, D'Armond, McCowan & Jarman, LLP909 Poydras StreetSuite 1450New Orleans, LA 70112-0000
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Brent L. CaslinKenneth Kiyul LeeJenner & Block, LLP633 W. 5th StreetSuite 3500Los Angeles, CA 90071
Jonathan Lawrence MarshRobert E. MeadowsKing & Spalding, LLP1100 Louisiana StreetHouston, TX 77002-0000
Ellen J. GlebermanAssociation of International Automobile Manufacturers2111 Wilson BoulevardSuite 1150Arlington, VA 22201-0000
Michael B. GerrardArnold & Porter, LLP399 Park AvenueNew York, NY 10022-0000
Robert R. GasawayKirkland & Ellis, LLP655 15th Street, N.W.Suite 1200Washington, DC 20005-0000
Michael L. RiceJones Day2727 N. Harwood StreetDallas, TX 75201-1515
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Richard L. FormanForman, Perry, Watkins, Krutz & Tardy, LLP200 S. Lamar StreetSuite 100City CentreJackson, MS 39201-0000
Kevin Patrick HolewinskiJones Day51 Louisiana Avenue, N.W.Acacia BuildingWashington, DC 20001-2113
Shellye V. McDonaldFranke & Salloum, PLLC2605 14th StreetGulfport, MS 39501-0000
Herbert L. ZarovJustin Bishop GrewellMayer Brown, LLP71 S. Wacker DriveChicago, IL 60606-0000
F. William BrownellNorman W. FichthornHunton & Williams, LLP1900 K Street, N.W.Washington, DC 20006-0000
Michael David FreemanBalch & Bingham, LLP1901 6th Avenue N.Suite 1500Birmingham, AL 35203-4642
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/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 6,715
words, including Exhibit A and excluding the parts of the brief
exempted by Fed. R. App. P.32(a)(7)(B)(iii).
I further certify that this brief complies with the typeface
requirements of Fed. R. App. P.32(a)(5) and the type style requirement
of Fed. R. App. P.32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2003 in 14 point
Century font.
/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association
CERTIFICATE OF COMPLIANCE WITH ECF FILING STANDARDS
Pursuant to Paragraph A(6) of the “ECF Filing Standards” of the
United States Court of Appeals for the Fifth Circuit, I certify that no
privacy redactions were required to be made to the attached Brief under
Fed. R. App. P. 25 or Fifth Cir. R. 25.2.13; that the paper copies served
on counsel, and to be submitted to the Court are exact copies of the
document filed electronically; and that the document has been scanned
for viruses with the most recent version of a commercial virus scanning
program and is free of viruses.
/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500
Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association