Types of Climate Change Disputes and Litigation in the USA University of Insubria, Como, Italy...

Types of Climate Change Disputes and Litigation in the USA

University of Insubria, Como, ItalyJeffrey W. Stempel and Ann C. McGinley

William S. Boyd School of LawUniversity of Nevada, Las Vegas

A Short History of Climate Change Litigation

Identifying the Problem

• 1950s – Modern scientists begin to recognize the possibility that human activity generating heat and carbon gas has affected Earth’s atmosphere and climate (actually some scientific attention as early as the 19th Century)

• But not much action and even less public awareness

• 1976 Al Gore (while still a U.S. Senator from Tennessee) has congressional hearings, supports further and increased study

Government Action

• National Climate Program Act of 1978• 1980 – Congress directs study by the Office of

Science and Technology Policy• Global Climate Protection Act of 1987• Intergovernmental Panel on Climate Change

(1990)• Global Change Research Act of 1990• UN Framework Convention on Climate Change• Kyoto Protocol (1997)

Climate Change Consciousness

• 1980s – Increased scientific evidence that industrial activity and the gases produced are affecting atmospheric and climate change

• Picked up more in the news media– Dominated by the term “Global Warming”

• 1990s – more scientific evidence and publicity• Early 21st Century – continues– “Climate Change” becomes the preferred term

Climate Change Consciousness

• But with increased climate change awareness comes backlash

• Climate Change Skeptics (but few in the scientific community)

• And outright Climate Change Denial– Petrochemical companies lead the charge– Accompanied by Extreme Right-Wing politicians– And because this is the USA, some of these people

are in Congress rather than straightjackets

Climate Change Rogues Gallery• The Koch Brothers (Charles and David)• Senator James Inhofe (R-Oklahoma)

– Contends that climate change is the “biggest hoax” ever

– June 2013: Oklahoma site of unusually massive and deadly tornados

• Fox News– Owned by Rupert Murdoch; Run by former

political consultant Roger Ailes; Viewed by many as a Republican public relations tool by many (but large number of viewers)

• Fundamentalist Christian religious communities– All is irrelevant for those waiting for the rapture

Mug Shots From the Rogues Gallery

To be fair . . . .

• The academic community in the USA tends to be left of the political community

• Universities and law schools have generally supported stronger climate change efforts

• But some “moderates” or less conventional thinkers in the academy

• Concern (that you will see in judicial decisions) about whether the courts should address problem or if problem should be addressed only or primarily by legislative and executive branches

To be fair . . . Part II

• A few scholars in the USA think the climate change problem is overstated

• And a few (e.g., J.B. Ruhl at Vanderbilt) suggest that not all impact of climate change will be bad for all people and regions. There will be some “winners” in climate change as well as “losers.” (The Political Economy of Climate Change Winners, 97 MINN. L. REV. 206 (2012)).– Arkansas dries up– But Canada has a longer growing season

But Fairness and Tolerance of the Conservative View Goes Only So Far

• In the USA, the majority of University and Law School faculty views climate change as a serious problem

• But a significant group is hesitant about what courts and traditional litigation can do

• As to the scope of the problem, the left is right: the problem is serious and USA has not taken enough action

• Scientific community (a generally less left group than the liberal arts or law community) is very worried

Legal Scholarship and Climate Change

• Broke out in a big way during the 21st Century• A new aspect of USA law – but uncertain as to

its direction in the academy or in the field• An early article: David A. Grossman, Warming

to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 COLUM. J. ENVTL. L. REV. 1 (2003)

Other Theoretical Roadmaps for Climate Change Lawsuits

• Lindsay Leone, Putting the Heat on the Fossil Fuel Industry: Using Products Liability in Climate Change Litigation, 21 B.U. PUB. INT. L.J. 365 (2011)

• Gregory Munro, The Public Trust Doctrine and the Montana Constitution as Legal Bases for Climate Change Litigation in Montana, 73 MONT. L. REV. 123 (2012)


• Grossman’s Template – still in progress• Outlines a number of potential lawsuits by

climate change victims against defendants whose actions have contributed to climate change

• Discusses technical legal issues


• Technical Legal Issues– Do Defendants owe a legal duty to victims?– Do victims have “standing” to sue?– Is a lawsuit the proper vehicle for assessing the claim?– What is the standard for liability?– Even if Defendants spew out greenhouse gases, can

this be shown to be a proximate cause of particular harm to particular victims?

– What damages suffered by victims can be attributed to defendant conduct?

Standing

• Required by Article III of U.S. Constitution• Plaintiff must show:– An Injury that is– Concrete and particularized as well as – Actual and imminent (not speculative or hypothetical)

• The injury is fairly traceable to defendant actions;• The injury can probably be remedied by a

favorable court decision

Elements of Negligence Tort

• Duty of Care owed by Defendant to Plaintiff• Breach of Duty by the Defendant• That is the proximate (fairly traceable and

legally recognized) cause • Of sufficiently provable injury to Plaintiff• Hard to achieve in climate change litigation– Demonstrating crop loss or flood caused by power

plant harder than showing defendant’s driving or exploding Coke bottle hurt plaintiff

Causation

• Must show that defendant action is a cause-in-fact of harm and

• That it is a “proximate” cause the law will recognize as not too attenuated or unfair in imposing liability

A Causal Chain – “for want of a nail the Kingdom was lost”

• Defendant companies engage in carbon-producing activity or goods

• Consumers use product (cars)to produce more carbon• These emissions cause a greenhouse effect• Sea levels rise, permafrost melts• Damage to air and property result• That is foreseeable• But this is also general: Can you say that a power

plant in Ohio causes harm in Vermont?

More on Legal Doctrine and Climate Change Litigation

• Difficulty in showing damages leads to efforts for injunctive relief – but this can cause more justiciability problems

• Can courts order governments agencies or regulate industries making carbon emissions?

• Is it a “political question?”• Do federal statutes “pre-empt” or “displace”

state statutory or common law claims that victims might otherwise have?

More on Legal Doctrine

• Are Climate Change Claims Tort Claims?• If So, What Torts?– Nuisance? (state or federal common law?)– Public Trust?– Negligence?– Strict Liability?– Trespass?

• Or must the claims be grounded in a federal statute?– But if a federal statutory claim, must courts yield to the

administrative agency in charge of the statute?

Public Nuisance

• Grossman thought this tort claim most likely to succeed in a lawsuit

• Elements are:– A right common to the public– Defendant’s unreasonable interference with

that public right– Failure to take reasonable actions to avoid or

reduce the harm

Examples of Unreasonable Conduct

• Significant interference with public safety, health, peace, comfort or convenience;

• Continuing conduct producing a long-term bad effect of which Defendant is aware (or should recognize) but does nothing; or

• Defendant conduct is illegal (in violation of statute or regulation)

Another Legal Question: Is There Insurance Coverage?

• The 20th Century expansion of Tort Law in the USA was to a large degree made possible because of the increasing presence of liability insurance held by defendants.

• Before the advent of widespread automobile and general liability insurance (which took place during 1920-1950), individual and small business defendants lacked funds to pay claims

• Lawyers would not take cases to sue defendants that could not pay

• But with insurance, the mid and later 20th Century saw a big expansion of tort liability and litigation

Climate Change and Insurance• If there is insurance, there will be more willingness of victims/plaintiffs

– lawyers to bring climate change lawsuits. Lawyers seek a “deep pocket” that can pay damages

– Insurance can provide this where defendant is not wealthy• Even the early “test” “cutting edge” “new cause of action” or

experimental cases that have a high failure rate (at least initially)• Example of asbestos:

– at first a high risk case brought by lawyers willing to take a risk. Years without success until courts accepted such cases. Then favorable precedent made it “easy” and an avalanche of lawsuits followed

• Similar example: Dalkon Shield– suits against the maker of the contraceptive device. Earlier failures but

perseverance led to victories and success.

Climate Change and Insurance

• To Soon To Tell – or a hopeless cause?• The climate change lawsuits to date have sought

injunctive relief• But most liability coverage is only for actions seeking

monetary damages from the defendant (who hopefully has liability insurance)

• Until more damages lawsuits are brought, we won’t know about insurance coverage

• A good case for coverage but also some good arguments against it

Insurance Coverage for Climate Change Claims

• Some early scholarly support– Stempel, Insurance and Climate Change Litigation, Ch. 10 in

BURNS & OSOFSKY, LITIGATING CLIMATE CHANGE (2009)• But some of it from policyholder lawyers– Malloy & Sylvester, Insurance Coverage for Global Warming

Liability Claims, 45 TORT TRIAL & INS. PRAC. L.J. 811 (2010)– Paul, The Price of Emission: Will Liability Insurance Cover

Damages Resulting From Global Warming?, 19 LOY. CONSUMER L. REV. 468 (2007)

• And still plenty of insurer resistance

Too Early for a Climate Change Scorecard?

• David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?, 64 FLA. L. REV. 15 (2012)(concluding that it is “business as usual” which translates into only modest impact from such lawsuits) – more on this after we look at our major cases

• Hugh S. Wilkins, The Justiciability of Climate Change: A Comparison of US and Canadian Approaches, 34 DALHOUSIE L.J. 529 (2011)(finding similar reaction of Canadian courts)

• Concern that courts can only do so much about climate change.

Massachusetts v. EPA

• Massachusetts and other states sue the Environmental Protection Agency (EPA)?

• Why?– To Force the EPA to issue regulations regarding

greenhouse gas emissions• What is the EPA?– An administrative agency of the national USA

government (the “federal” government)

Massachusetts v. EPA (con’t)Backing Up a Step

• What is an Administrative Agency?– Technically a part of the Executive Branch– Agency heads report to the President

• But created by the legislature (Congress)

• Remember the organizational chart• Legislative – Executive – Judicial

– Early debate was whether Congress could “delegate” this much lawmaking and enforcement power to the Executive Branch

– Modern “Administrative State” accepts this in USA and other industrial democracies

More Background on Massachusetts v. EPA

• How did The EPA come into being?– Created as part of the “Earth Day” legislation

of 1970– Along with Clean Air Act, Clean Water Act– Headed by an “Administrator” rather than a

cabinet secretary but still very important

More on Massachusetts v. EPA

• How can a state sue a part of the national government?– In the USA system – yes – subject to some constraints that

are less likely to affect private litigation• What are some legal problems with Massachusetts

pursuing this action?• Standing – Does the plaintiff have a right to bring a lawsuit against the

defendant? (an injury)• Justiciability – Is the matter appropriate for judicial determination?

Standing

• There must be a real (and not a hypothetical dispute) between the plaintiff and defendant– In simple form, standing means the claim is sufficiently

tangible and that the plaintiff has a non-speculative claim against the defendant

– And the harm must be immediate and concrete– For example: I’m worried that Google will give my private

information to the government” used to be a hypothetical, speculative claim.”

– But “Google did in fact share my private data with the government” would seem to be a sufficiently concrete claim

Standing

• But beginning in the 1970s, the U.S. Supreme Court began applying a more involved concept of standing that requires not only that the dispute between the litigants be real but also that:

• The injury can be fairly traced to the defendant’s action; and

• Winning the lawsuit will give a judicial remedy that adequately redresses the harm suffered

• As we shall see, this appears to co-mingle standing and justiciability

Justiciability

• The concept stems from the USA system of separation of powers– The idea is that the judiciary should be deciding cases and

not making policy like a legislature or executive.– This is one of the reasons for the standing requirements as

well• To be justiciable, a case must be one that can be

decided according to judicial methods with the application of judicial remedies for the winner– But modern challenges have often led to an expansion of

judicial remedies

Justiciability Concerns

• Avoiding Advisory Opinions• Avoiding a decision that is speculative because the dispute is

not yet “ripe” for adjudication– e.g., suing the EPA administrator because you think she is likely to

make a bad regulation in 2015• But also refusing to decide a case where there is no longer

anything the court can do because the legal aspect of the case is “moot”

• e.g., attacking the EPA imposition of a penalty where the EPA subsequently waived the penalty– But some courts would hear this case because it is capable of being

repeated

Justiciability

• Avoiding legislative lawmaking by the court• “Political Questions” presented in a lawsuit

will not be entertained by USA courts• A political question is one that the

Constitution has assigned to another branch of the legislature– Example: A court may declare a tax

unconstitutional if it is discriminatory – but it will not determine the amount of a tax

Back to Masschusetts v. EPA

• Statute enacted by Congress instructs EPA to regulate “pollutants.”

• EPA has taken the position that carbon dioxide and other greenhouse gases are not “pollutants” subject to agency regulation

• Either because CO2 is not really a polluter• Or because if it is, it is already being

regulated by legislation concerning automobile emissions


• Massachusetts claims that EPA failure to regulate hurts the state and that this gives Massachusetts “standing” to sue

• Does the Supreme Court agree?• Yes – Massachusetts (and other states) have an

interest in protecting the state lands and the air – an allegation that another (even a government agency) is hurting the air, water and land creates a concrete and adverse dispute that is not merely hypothetical


• Because there is Standing, the Court can consider and judge the issue of whether EPA is in violation of the statute.

• By a 5-4 vote (as was the case on the issue of standing), the Court finds EPA in violation

• The Statute is clear – EPA should regulate pollutants• The fact that there is other regulation over some

pollutants some of the time (e.g., automobile tailpipe emissions) does not take this authority or duty away)


• Carbon Dioxide is clearly a pollutant• Sure, CO2 is a natural bi-product of breathing,

some natural activity• So are other greenhouse gases (e.g., methane –

take a walk around a cow pasture and take a deep breath to confirm)

• But natural or man-made, CO2 is a greenhouse gas that is alleged to contribute to adverse climate change


• Greenhouse cases are sufficiently “pollutants” that they fall within the statutory command that EPA examine and take regulatory action

• But the Court is not declaring exactly what regulatory action should be taken by EPA

• Rather, EPA simply has to go to work and exercise its decision-making authority

• Conceivably, EPA could decide that despite its contribution to climate change, regulation CO2 is not in the public interest because of administrative cost, burdens on business, etc. – but EPA must at least examine the situation


• The Court majority (Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg & Breyer)

• The dissenters (Chief Justice Roberts and Justices Scalia, Thomas and Alito)– Disagreement over standing– Disagreement over interpretation of the statute– Disagreement over the role of the Agency– Dissenters find the case a political question; Decisions of

this type should be left to legislature or the executive (including agencies operating within the executive branch).

Massachusetts v. EPA -- Aftermath

• Case decided in 2007– Near the end of the George W. Bush Presidency

• 2008 – Barrack Obama elected President• 2009 – President Obama appoints Cabinet officials and

many agency heads – including a new EPA Administrator

• The Obama EPA willingly does what the Bush EPA was required to do by lawsuit

• Does this mean it was a political question after all?• That should have been left to the Executive Branch?

Connecticut v. American Electric Power

• At least the case starts with that name• Connecticut and other states sue AEP and

many other utilities because defendants put huge volumes of greenhouse gases into the atmosphere, contributing to accelerated adverse climate change

• Power plants, automobiles, and airplanes as particularly substantial contributors to climate change


• Case begins in the federal trial court in the Southern District of New York (Manhattan)

• Defendants move to have the complaint dismissed as not being justiciable on the ground it presents a “political question”

• The trial court grants the motion and dismisses the case

• Plaintiffs appeal


• The case is now heard by the United States Court of Appeals for the Second Circuit (New York, Connecticut, Vermont)

• Heard by a three-judge panel that includes Judges Joseph MacLaughlin, Peter Hall and Sonia Sotomayor

• But before a decision can be announced, Judge Sotomayor is nominated for the Supreme Court seat held by retiring Justice David Souter.

• The remaining two 2d Circuit Judges issue an opinion that overturns the lower court’s dismissal of the case

American Electric Power v. Connecticut

• The Defendants seek review before the U.S. Supreme Court, which is granted.

• The name of the case then becomes AEP v. Connecticut because AEP is the “petitioner,” whose petition for certiorari was granted. Connecticut, although still the plaintiff in the case at trial, is the “respondent” to the petition for review.


• The Defendants argue that Connecticut does not have standing

• The Supreme Court affirms the 2d Circuit holding that standing exists and does so by an “equally divided Court”

• This means that four justices thought there was standing and four did not. The Court has 9 members – but one of them is Justice Sotomayor, who is disqualified

because she participated in the case when it was before the Court of Appeals

– that’s why there are only 8 Justices voting on the standing question


• Because of the affirmance on standing by an equally divided court, the four Justices who do not think Connecticut has standing do not bother to dissent

• This makes AEP v. Connecticut look less controversial than is actually the case

• The Court remains deeply divided on the standing question

• But if Justice Sotomayor had participated, she would have probably voted that the state could sue, leading to the same 5-4 result on the issue that occurred in Massachusetts v. EPA


• Once past standing, the Court considers whether the state claims against the utilities based on federal common law can proceed

• Here the Court is united – and united against letting the lawsuit proceed

• The claim is premised on “federal common law” the law created by judicial decisions regarding national matters

Federal Common Law

• A bit of a rarity• Most federal law cases are based on statutes

enacted by the national government (or because of legal rights created by treaties or the Constitution)

• (Remember: cases also may be in the federal court (and remember, “federal” means “national”) because the case involves citizens of different states

Federal Common Law

• Where there is a statute that expressly governs an area of law (express preemption) or that by implication occupies a particular field of law (field preemption), the statute controls and a federal common law claim cannot be brought.

• The Court finds that the Clean Air Act preempts or displaces federal common law


• The Clean Air Act sets forth rules about air quality• The Act also creates the EPA and assigns

enforcement of the Act to the EPA• Because of this, federal common law is displaced• Because Connecticut sued based on the federal

common law of nuisance, the case cannot proceed – because it is based on a displaced body of law – displaced legislation authorizing EPA to regulate CO2 emissions (air pollution)


• Connecticut cannot continue suing on the basis of federal common law

• But perhaps a state statute would support relief -- or perhaps state common law

• The case is “remanded” (sent back to the trial court) for further proceedings.

• Can Connecticut bring a state law claim?• Depends on whether federal/national statute

“pre-empts” state law in this area

The Nuisance Cause of Action

• The federal common law claim Connecticut wanted to make was one providing relief if the defendants had caused a “nuisance.”

• What is the tort concept of “public nuisance”?– Unreasonable Interference with right common to

the public– Without reasonable efforts to avoid, reduce, or

mitigate the injury


• Regarding federal law, can Connecticut sue for relief using the substance of the Clean Air Act rather than federal common law? Why or why not?

• The law says no – the Act gives the EPA the power to enforce clean air standards and does not permit private lawsuits such as the one by Connecticut (But under Mass. v. EPA the state can sue for a rulemaking)

AEP v. Connecticut & Justiciability

• The Court also finds Justiciability problems – why?• The issues of pollution and climate change are

complex• Better suited to examination by an “expert”

administrative agency• Ill-suited to conventional adjudication by a court• Need for experts, need for decisionmaker

expertise (judges and regulators are different)

Village of Kivalina v. ExxonMobil

• Review from Torts class description of Kivalina v. Exxon lawsuit

• Small Alaskan village on a small island• Threatened by rising seas• Kivalina sues the major energy

companies on the theory that defendants’ production of large amounts of greenhouse gas for decades fueled the rise in sea level that threatens the survival of Kivalina


• Village seeks monetary damages – payment for the loss of land and impending loss of the Village so that it (and the people) can be relocated

• Theory of damage is that climate change made for reduced ice, which was the historical wall of protection for the shoreline around Kivalina

A Reminder on Remedies: Damages as Compared to Injunctive Relief

• Recall injunctive or “equitable” relief and how it differs from “legal” relief (a suit for monetary damages)

• Damages – “simple” payment of money– But may be hard to calculate the correct amount

• Injunctive relief: seeking to command the defendant to do something (e.g., lower emissions from consumption of products) or refrain from doing something (producing products that contribute to climate change)


• Trial court dismissed the case because:– No Standing to sue for Kivalina– Case presents a nonjusticiable political question

• Appeal to the U.S. Court of Appeals for the Ninth Circuit

• Largest in the USA in terms of population, caseload• California, Arizona, Nevada, Oregon, Washington,

Idaho, Montana, Alaska, Hawaii, Guam, Mariana Islands

• Heard by a three-judge panel

Kivalina v. ExxonMobil Panel

• Judge Sidney Thomas authors the opinion (from Montana; Appointed by President Bill Clinton; reputed to be one of the “finalists” when President Obama selected Justices Sotomayor and Kagan)

• Joined by Judge Richard Clifton (from Hawaii; appointed by President George H.W. Bush and generally conservative, but not as conservative as most judges appointed by President George W. Bush)

• Judge Philip Pro (a District Judge from Las Vegas; Appointed by President Ronald Reagan). Although a trial court judge, Judge Pro is sitting with the panel “by designation.”


• Kivalina claim is based on federal common law• Similar to Connecticut v. AEP• Ninth Circuit therefore finds that federal

common law claim for relief cannot be made• Federal common law is displaced by the Clean

Air Act• If Kivalina wants relief, it will need to enlist the

help of the EPA


• “Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.” 696 F.3d at 858.

• Doesn’t matter that this is a case for damages, not injunction

• Opinion does not address the issue of standing – because the issue of displacement of common law by statute precludes the case from going forward even if the Village has standing.


• Judge Pro concurs• What is a “concurrence”• Judge Pro concurs so that he can make his own comments

on– Standing: he thinks Kivalina lacks standing -- but is that correct

if Massachusetts had standing in its case against the EPA?– Justiciability: If Kivalina or similar litigants have standing, the

fact that they cannot get injunctive relief under federal common law does not mean they cannot sue for monetary relief (presumably under state law as well as federal common law).

More on the Pro Concurrence

• Judge Pro finds the cases in some conflict• But some, particularly Silkwood v. Kerr-McGee,

suggest that an injured party may pursue a lawsuit for damages even if there could not be a lawsuit for an injunction by anyone other than the responsible government agency

Interesting Precedent in the Pro Concurrence

• The Karen Silkwood saga• Union activist – accused Kerr-

McGee, a big energy company, of unsafe practices at a uranium plant in Oklahoma

• Silkwood as a whistleblower• But she dies in an auto accident on

the way to meeting a reporter• Suspicions abound -- but never any

prosecution

Image: hazardous waste / thetruthabout / flickr.comhttp://www.flickr.com/photos/thetruthabout/2745702704/

Silkwood

More on the Silkwood Case

• Silkwood’s estate did pursue a tort claim after her death

• But the tort claim was not for wrongful death due to the auto accident or any alleged murder

• Instead, the claim was that before she died, Silkwood was contaminated by radiation because of unsafe practices at the Kerr-McGee facility

More on Silkwood• At trial, Silkwood (represented by famous plaintiff’s personal injury

lawyer Gerry Spence) wins a big verdict ($500,000 compensatory damages and $10 million punitive damages)

• On appeal, the damages are set aside on the theory that the pervasiveness of nuclear facility regulation by statute and the Nuclear Regulatory Commission precludes a private lawsuit for damages (pre-emption of state tort law by federal law)

• The U.S. Supreme Court reverses and permits the verdict to stand: federal atomic energy regulation does not displace Oklahoma tort law. (Georgetown Law Professor Michael Gottesman argued for Silkwood)

• As discussed by Judge Pro, Silkwood is something of a high water mark in permitting private lawsuits despite a pervasive (if perhaps ineffective) regulatory scheme– Would the Current Supreme Court reach the same result?

More on Silkwood

• And of course, a story this good needs a movie• Silkwood (1988)• Starring Meryl Streep, Cher• Directed by Mike Nichols• Written by the late Nora Ephron• Focuses on Silkwood as a whistleblower and

possibly a victim of murder by her corporate enemies – skips the civil lawsuit and preemption questions.

Other Climate Change Cases

• Comer v. Murphy Oil• A long saga (begins in 2005)• Plaintiffs allege that greenhouse gas producers

created climate change that increased the force of Hurricane Katrina’s destruction

• Federal District Court (trial court) in Mississippi dismisses the case: lack of standing and non-justiciable political question

Katrina

Katrina’s destruction

Comer v. Murphy Oil (cont’)

• Plaintiffs appeal – a panel of the Fifth Circuit reverses the trial court

• Finds standing to bring claims under theories of nuisance, trespass and negligence and that the claims are justiciable

• But before the case can go back for trial, unusual developments

Comer v. Murphy Oil (con’t)

• Fifth Circuit votes to rehear the panel opinion “en banc” – meaning before the entire Court of Appeals

• But then several judges “recuse” (disqualify) themselves because of owning stock in one or more of the energy company defendants

• That leaves too few non-recused judges for a quorum

• But the grant of rehearing vacated or erased the panel opinion

• Which means the trial court dismissal stands

An Epilogue on Comer

• The plaintiffs re-file the lawsuit that was dismissed because of the crazy circumstances of the rehearing and recusal

• For the new lawsuit, the trial court finds it barred by the doctrine of res judicata or claim preclusion – the rule that once a case has been decided on the merits (and dismissal can count as decision), the case may not be brought again

• Fifth Circuit affirms dismissal of this second case in 2013

Is Comer Justice?

But Another, More Conventional Hurricane Katrina Case is Successful

• In Turner v. Murphy Oil, plaintiff homeowners and businesses injured by oil spill in Louisiana sue

• Claim is that defendant negligence in failing to properly secure above ground oil storage tanks caused injury

• The tanks did not withstand Hurricane Katrina• Settles for $330 million


• California v. General Motors • State sues GM and other auto makers,

alleging that poor gas mileage and excess carbon emissions unnecessarily made climate change more severe, causing ice melt and attendant bad effects in California

• Suit seeks damages to compensate for what State must do in response to these climate change problems

• Federal District Court dismisses – finds the case non-justiciable

California v. General Motors

• Trial court sees case as presenting political question that cannot be handled by a court

• Focuses on “the impossibility of deciding [the case] without an initial policy determination of a kind clearly for nonjudicial discretion” – i.e., legislative or regulatory sollution

• Perhaps surprisingly, finds support for its decision in Massachusetts v. EPA – because the regulatory agency is being forced to follow the statutory plan to regulate pollutants

California v. General Motors

• “Were judges to resolve political questions, there would be no check on their resolutions because the Judiciary is not accountable to any other branch or to the People.”

• Whoa – are courts really that powerful?• Remember, a trial court adjudication is appealable, and • What about:

– legislative change in the law to change a court result? – Impeachment of judges? – Legislative reduction of the court budget?– Public opinion?


• Butler v. Brewer (Ariz. Ct. App. 2013)• Plaintiff, a minor, sues the Governor of

Arizona and other officials• Asserts the “Public Trust Doctrine”• A body of law that permits judicial action to

protect property of the public from mismanagement by government

Butler v. Brewer

• Trial court dismisses the claim• Arizona Court of Appeals affirms dismissal

– No standing because Plaintiff does not allege sufficiently direct and concrete harm to her personally

– State statues and regulations displace state common law– And the state statutes and regulations do not support the relief

Plaintiff seeks• Also finds the case presents a political question and that it is not

a court’s “job” to “declare policy for the State” and that Butler should lobby the legislature.– But finds that in the right case, the Public Trust doctrine can apply to

air as well as land and water (but one dissenting judge would not even go that far)

Reflecting on Litigation to Date

• Litigation has been only a moderate success• Forcing the EPA or other regulatory agencies to

at least address the problem• But if the agency action is weak (rather than

completely non-existent), the courts appear not to want to become involved or second-guess the regulators

• Pre-emption and Political Question doctrines limit judicial relief to date

Future Climate Change Litigation: Still Open Questions

• Use of federal common law in situations without displacement by national statutes

• Use of state statutory remedies where state law not pre-empted

• Use of state common law of torts if no pre-emption• Particularly pursuit of an action for damages• Which may operate more like a “regular” lawsuit • Courts then less concerned about judicial activism

and intrusion on the more political branches

And There’s More

• When there is a lawsuit in the USA, both parties consider whether insurance coverage exists

• Defendants want insurance to apply to hire lawyers for defense and to pay claims

• Plaintiffs want insurance to ensure compensation• Insurers would prefer not to pay and keep the

premiums and interest earned on their investments

Insurance Coverage Litigation

• Because insurance is such an important factor affecting USA law and legal outcomes, there will often be lawsuits in which a court is asked to determine the meaning of an insurance policy and whether it applies to provide funding and defense costs.

• Question is whether the insurance “covers” the claim or loss in question

• Court determines the meaning of the insurance policy – but juries often involved in making factual determinations

Some Early Coverage Litigation About Climate Change Lawsuits

• AES Corp. v. Steadfast Ins. Co. (Virginia Supreme Court 2012)

• Steadfast is the liability insurer for one of the defendants sued by the Village of Kivalina

• Steadfast contends that it does not need to defend the case or pay any claims because the defendant’s harm to Kivalina was not an “accident” as required by the policy.

AES Corp. v. Steadfast Ins. Co.

• The Virginia Supreme Court agrees with the insurer (Why Virginia?)

• A terrible decision – both in terms of reasoning and practical impact

• The Court mistakenly equates a policyholder’s intentional activity (e.g., running a power plant, manufacturing engines) with planned results or an intent to injure

AES Corp. v. Steadfast Ins. Co.

• This confusion/conflation about intentional conduct and accidents is a common problem for USA courts – Where many judges become judges without any

training or experience with insurance• Many USA judges are former prosecutors: extensive

knowledge of criminal law but sometimes weak knowledge of civil law

– Or the judge previously worked for insurers in private practice

Judicial Misunderstanding of Fortuity

• The Kivalina defendants may have intended to make polluting things or to run businesses that emitted greenhouse gases

• But they most likely did not intend to raise the ocean levels– Or to erode the shoreline– Or to flood the Village or force it to relocate

The Virginia Decision: At Odds with the Purpose of Liability Insurance

• Policyholders purchase liability insurance to protect them from (mostly tort) lawsuits, by both defending them and paying claims arising from their ordinary activities that may cause injury to others

• Most claims are made against a policyholder when something unexpectedly goes wrong, often because the policyholder (or its employees acts negligently)

• If there were no injuries or negligence, there would be no need to buy liability insurance

• Insurance becomes worthless if a court takes it away under the theory that injuries arising out of company activity are not “accidents”

Cinergy Corp. v. Associated Electric & Gas Insurance Services

• Indiana Court of Appeals (2007)• Here, the issue is whether liability insurance

provides coverage to the policyholder when the EPA sues to require the Cinergy Corp. to do a better job controlling pollution from its facilities.

• Court finds that because liability insurance only applies to claims for monetary “damages” there is no coverage for a government action seeking to require particular conduct

Types of Climate Change Disputes and Litigation in the USA University of Insubria, Como, Italy...

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