While legislation to regulate greenhouse gas (“GHG”) emissions may be facing an uphill battle in the Senate, lawsuits claiming global warming damages are becoming a real issue for emitters of GHGs. In late 2009, two circuits of the U.S. Circuit Courts of Appeals made threshold determinations that plaintiffs in suits based on global warming had standing to bring such claims into court.

Specifically, the 5^th Circuit recently held that if global warming causes an injury, individuals have legal standing to bring tort claims against companies that contribute to global warming by emitting greenhouse gases into the environment. Standing refers to the right of a particular plaintiff to bring a lawsuit. To determine whether a plaintiff has standing, courts look to whether a plaintiff has suffered a particularized injury that was caused by the defendant, and whether that injury can be redressed by the court.

In Comer v. Murphy Oil USA, the 5^th Circuit held that the plaintiffs, whose property was damaged by Hurricane Katrina, had standing to bring claims for public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation and civil conspiracy against the defendant for the emission of GHGs into the environment, which allegedly contributed to the magnitude of Hurricane Katrina. Particularly, the court found that the harm alleged was fairly traceable to the defendant’s emission of GHGs,   The court relied on the United States Supreme Court’s decision in Massachusetts v. U.S. Environmental Protection Agency, which found that the state of Massachusetts had standing to sue the Environmental Protection Agency (“EPA”), regarding EPA’s failure to regulate  GHG emissions under the Clean Air Act during the Bush administration.

Previously, plaintiffs' claims related to climate change had long been denied by the courts on the grounds that the claims were “non-justiciable political questions.”  But, in Comer, the court held that  ruling on the plaintiffs tort claims would not interfere with a constitutionally protected area of the legislative or executive branch. Additionally, the court refused to set aside an issue merely because it was up for political debate. As a result, the case is now on track to go to trial. 

Also recently, in Connecticut v. American Electric Power (“AEP”), the 2^nd Circuit recently held that the plaintiffs had standing to sue  to force a  cap on GHG emissions. AEP involves a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies asserting that the defendants’ GHG emissions contributed to global warming and were thus a public nuisance.  Additionally, the court agreed that nuisance claims, which involve global warming, are not barred as a political question.  Furthermore, the court reasoned that plaintiffs should not have to wait for federal legislation before a remedy may be obtained.

In a contrary holding, the U.S. Northern District Court of California disagreed with the 2^nd and 5^th Circuits and held in Native Village of Kivalina v. ExxonMobil Corp that global warming was a non-justiciable political question and dismissed plaintiff’s public nuisance claim.  In Kivalina, the plaintiffs claimed that defendant’s GHG emissions contributed to global warming, which allegedly caused the sea level to rise and the village to be partially destroyed.

The Court found that it was up to the legislative and executive branch to allocate fault for global warming. Further, the Court held  that the emission of greenhouse gases were not directly  traceable to the harm alleged; thus, denying standing.  The court reasoned that there were too many sources emitting greenhouse gases throughout the entire world for the court to trace the blame to the defendants Also, the court reasoned that  the pollution was not traceable to the harm as it was too remote and there was a disconnected series of events that occurred between the pollution and injury. The plaintiffs in Kivalina  plan on appealing to the 9^th Circuit Court of Appeals.

Even though the outcome of these cases is yet to be known, it’s evident that GHG emitters can no longer count on a lack of standing or the political question doctrine as a shield. As a result, industry may be forced to defend against a rising tide of GHG-related litigation.  

This blog post is courtesy of guest blogger Maria Gust.