Recently, two courts have issued decisions in cases involving nuisance claims based upon “global warming.” Although the two cases reached different decisions, both cases demonstrate that “global warming” is not only heating up everything from political debates to coffee shop discussions, but also the courts.
In Comer v. Murphy Oil USA , the United States Court of Appeals for the Fifth Circuit overturned a lower court decision that dismissed a punitive class action brought by several plaintiffs who alleged they suffered harm from the defendants whose conduct of operating energy, fossil fuels and chemical industries that contributed to “global warming” climate change, which then increase global surface temperatures causing a rise in sea levels and “strengthening the ferocity” of hurricane Katrina. The plaintiffs’ claims were based on theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.
The defendants moved to dismiss the plaintiffs’ claims asserting the plaintiffs’ lacked standing as their claims presented a nonjusticiable political question. Applying Mississippi constitutional law, the lower district court dismissed the plaintiffs’ claims. The Fifth Circuit Court of appeals disagreed. The Fifth Circuit held that under Mississippi law the plaintiffs’ claims for nuisance, trespass and negligence did not present a political question. However, the court dismissed the plaintiffs remaining claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy for failing the prudential standing doctrine.
The district court had ruled in favor of the defendants who argued that the plaintiffs had failed to show that their alleged harms were traceable to the defendants’ actions, and, therefore, that the plaintiffs’ theory was too attenuated. The Fifth Circuit Court of Appeals disagreed stating that such an argument essentially called upon the court to evaluate the merits of the plaintiffs’ causes of action, which is misplaced at the threshold standing phase of the litigation.
Hence, the Fifth Circuit considered the Plaintiffs’ allegations (that the defendants’ actions had caused the global warming and strengthening of the hurricane) as if they were true. Since the court considered the plaintiffs’ claims as true, it found their claims to be redressable through monetary damages. The court went on to explain that as plead under Mississippi law the defendants’ willful, unlawful, unreasonable use of their property to emit greenhouse gases constituted a private nuisance that inflicted injury upon the plaintiffs’ land by causing both the rising sea levels and strengthening of the hurricane.
However, the Fifth Circuit Court of Appeals dismissed the plaintiffs’ claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy, holding that these claims failed the prudential standing doctrine because the plaintiffs’ had failed to identify a particularized injury that must affect the plaintiff in a personal and individualized way.
In Village of Kivalina v. ExxonMobil Corp. , The United States District Court for the Northern District of California dismissed the plaintiffs’ federal common law nuisance claims. In this case, the Native American plaintiffs and their village, which is a self-governing federally recognized tribe, sued twenty-four corporate defendants. The plaintiffs alleged that the defendants destroyed their native island habitat by contributing to “global warming,” which caused a rise in sea levels and diminished the amount of seasonal sea ice that packs along the island surf leaving the island’s beaches exposed to excessive erosion, which made the small island even smaller and essentially uninhabitable.
The district court dismissed the plaintiffs’ nuisance claims for lack of standing as a nonjusticiable political question. In doing so, the court held that the plaintiffs’ nuisance claims were void of any judicially discoverable and manageable standards since resolution of a nuisance claim is not based on whether the plaintiff finds the invasion unreasonable, but rather, whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.
The court said that here the plaintiffs were asking the factfinder to consider the utility of the defendants’ operations against their means by weighing the energy-producing alternatives that were available in the past while considering 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 at every level. The court went on to explain that the factfinder would then have to weigh the benefits derived from those choices against the risk that increasing greenhouse gases would in turn increase the rick of causing flooding along the coast of a remote Alaskan locale. The count said that the plaintiffs practically ignored this aspect of their claim and otherwise failed to articulate any particular judicially discoverable and manageable standards that could guide a factfinder in rendering a principled, rational and reasoned decision.
The plaintiffs attempted to argue that since they had not sought any injunctive relief that there was no need for the court to determine retroactively what emission limits should have been imposed upon the defendants’ operations. However, the court found that the plaintiffs’ nuisance claims were problematic in this regard because they called for an initial policy determination that required the court to make a policy judgment of a legislative nature, rather than resolving the dispute through purely legal and factual analysis. The court said that resolution of the plaintiffs’ nuisance claims required balancing the social utility of the defendants’ conduct with the harm it inflicts. The court went on to explain that such a process necessarily involves a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by defendants.
In the same vein, the court found that the plaintiffs’ arguments also failed to deal with the fact that resolution of their nuisance claims required the judiciary to make a policy decision about who should bear the costs of global warming. While the plaintiffs alleged that the defendants caused a substantial portion of greenhouse gas emissions, the plaintiffs also acknowledged that virtually everyone on Earth is responsible on some level for contributing to such emissions. The court found that plaintiffs, by bringing this lawsuit, had in effect asked the court to make a political judgment that the two dozen or so defendants named in the action should be the only one to bear the costs of contributing to global warming. Thus, the court held that the allocation of fault and the cost of global warming is a matter that should be left for the executive or legislative branches of government in the first instance.
To see Comer v. Murphy Oil USA click here.
To see Village of Kivalina v. ExxonMobil Corp. click here.
Posted on
Monday, November 2, 2009
by Seth D. Coldiron