Climate Change and the Common Law

The recent line of climate change cases presents the question of whether climate change is sufficiently unique to enjoy immunity from tort law. It would seem odd to think that it is. The rules of tort are well established, and courts have historically applied these rules to fill in the gaps in federal environmental legislation. Yet, every district court to consider these claims has held that they raise non-justiciable political questions committed to the political branches. This note examines the political question doctrine and its application to public nuisance claims asserted in climate cases. It concludes that “the thicket of global warming” does not present a political question, and that courts have been too quick to embrace the political question doctrine as grounds dismissing these causes of action.
The Cases: Public nuisance or political question?
In American Electric Power, state plaintiffs sought an injunction to reduce GHG emissions from six coal-fired electricity plants. The threshold question in the case was whether such a remedy presented a nonjusticiable political question outside the scope of the court’s jurisdiction – in short, whether the court could impose a cap on the defendants’ GHG emissions. The political question doctrine requires federal courts to avoid deciding matters better left to the political branches. The district court dismissed the case on this ground, noting that the injunction was “impossible” without an “initial policy determination”: namely, the “identification and balancing of economic, environmental, foreign policy, and national security interests,” which the court determined to be a question for the political branches, not the judiciary.
The Second Circuit vacated the dismissal. It emphasized the absence of a “textually demonstrable constitutional commitment” of the nuisance issue to a political department, and that judicial standards were capable of crafting an appropriate injunction. It further rejected the defendants’ arguments that allowing the case to proceed would result in a national emissions policy or undermine the separation of powers. Because the EPA had not yet regulated greenhouse gas emissions in such a way that “speaks directly” to the issue that the plaintiffs raised, the federal common law of nuisance was an appropriate cause of action.
The state plaintiff in California v. General Motors Corp., charged various automakers with the public nuisance of “creating, and contributing to . . . global warming.” Unlike the state plaintiffs in American Electric, California sought compensation for damages it would incur as a result of global warming. Distinguishing American Electric as a suit for equitable relief, the district court determined that it could not hear California’s claim for damages without an “initial policy determination” from the executive or legislature. The court further concluded that the California’s claim was nonjusticiable because it implicated interstate commerce and foreign policy, areas constitutionally committed to the political branches of government. With the case awaiting review by the Ninth Circuit, the federal government stepped in. EPA acknowledged that “greenhouse gases are a public health danger and must be regulated,” and the President directed the Department of Transportation to “establish higher national fuel efficiency standards in line with the standards California had sought to implement.” Consequently, California voluntarily dismissed its appeal in 2009.
Climate change, as Chief Justice Roberts observed in his dissent in Massachusetts v. EPA, “may be a crisis, even the most pressing environmental problem of our time.” One problem with climate change is that its causes and effects are not equally distributed. It is caused much more by some than by others. While its impacts are global, its costs are distributed unevenly, bearing most acutely on the poor and the politically disenfranchised. Some have nowhere to turn but to the courts. For example, in City of Kivalena v. Exxon Mobil, the Alaska Native Village of Kivalena brought nuisance claims against a dozen energy companies. The plaintiffs claimed that the defendants’ GHG emissions contributed to global climate change, rendering their coastal village uninhabitable. The plaintiffs sought compensation for the estimated $400 million it would cost to relocate their entire community before it melts—schools, churches, streets, businesses, and polar bears —into the
Arctic Ocean. Finding that these allegations presented a non-justiciable political question, the Northern District of California dismissed the case.
In Comer v. Murphy Oil USA, fourteen private citizens filed a class action law suit against 147 oil, chemical, power, and insurance companies in Mississippi, for their contribution to the destruction of plaintiffs’ private property. Plaintiffs alleged that by emitting greenhouse gases, defendants contributed to increased sea levels and Hurricane Katrina’s increased ferocity, which in turn damaged the property in question. Proceeding under state common law claims, The Fifth Circuit ruled that these claims did not present a nonjusticiable political question.
In its analysis, the Comer court explained why public nuisance claims for climate change impacts must be considered justiciable, at least for the immediate future. The court noted that until the federal government responds to the climate change issue with legislation or regulations, “there is no commitment of those issues exclusively to the political branches of the federal government by the Constitution itself or by federal statutes or regulations.” Even if Congress does enact comprehensive GHG legislation, it might very well preserve state common law remedies, as the CWA did. Thus, while the EPA’s recent regulatory actions may preempt claims under federal common law, nothing in the Clean Air Act prevents future tort claims under state law. Consequently, common-law climate change litigation remains a viable action-forcing mechanism.
Discussion
Expressly deciding not to “enter the global warming thicket,” district courts dismissed each case as presenting a non-justiciable political question. In other words, the cause of action was dead on arrival. There was no answer, no discovery, no hearings, no proof, and no opportunity for the plaintiff to present her case. Case closed. The courts reasoned that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. These summary conclusions seem inaccurate, and inappropriate in light of how the doctrine has been applied in the past.
The political question doctrine does seem applicable to a very narrow class of cases. Applying the doctrine involves “a delicate exercise in constitutional interpretation” to be conducted on a “case-by-case inquiry.” It is to be used sparingly in the context of demonstrable “political questions”devoted to the elected branches, not simply to cases that involve political issues. Indeed, the Supreme Court has used the doctrine only six times in more than two centuries. Traditional questions into which courts “ought not enter the political thicket” include political apportionment and gerrymandering, impeachment, constitutional amendments, and treaty abrogation. Even among clearly political cases it is rarely raised. For example, the Court made no mention of the doctrine while resolving issues arising from Florida’s recount of votes in the 2000 presidential election, despite the fact that the Constitution vests in Congress the authority to count electoral votes, and further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.
Ideally, Congress would address climate change. It could force the energy and automotive industries to adopt clean technologies or bare the economic externalities of their climate-altering activities. It could apportion the costs of the property damage, health care, and community relocation resulting from climate change. Sadly, it does not seem that such measures are likely anytime soon. Some states have responded with their own measures to reduce GHG emissions. But states have little means either to require technological solutions or to recover their response costs. The costs to states and individuals for responding to climate change will likely be unlike anything we have seen in kind or degree. And without a comprehensive system for allocating those costs, this much we can count on: the most-damaged states and individuals will also be the poorest.
Potentially, these litigations could help to shape a viable legal and policy framework for climate change in the United States. By resolving issues of liability and remedies in the court system, these suits may succeed where the federal government has failed in seeking to merge environmental protection and human injury into an actionable legal theory. Since Georgia v. Tennessee Copper, federal common law for public nuisance has served as a meaningful cause of action for states and individuals to stop harmful interstate pollution and recover their costs. Climate change seems like a natural fit for the doctrine. It is indifferent to political boundaries. Legislation providing for injunctive measures or compensation is nonexistent. A hodgepodge of state common law would lack consistency. And of course, the common law is not without its own problems. Federal common law is unwieldy and nebulous. It is hardly the only or most efficient societal response to climate change. But it is a valid response. Climate cases, if they are to fail, should fail on other grounds, such as plaintiffs’ failure to prove causation, or that its damages are “unreasonable,” or because the claims have actually been displaced by an appropriate act of Congress or the executive.
Access to the judicial process should trump concerns about the future implications of a positive verdict for two main reasons. First, political question challenges occur early in the process, well before plaintiffs have the chance to gather and present evidence in support of their claims. In cases hinging on a nexus between the defendant’s contributions to climate change and the plaintiff’s injuries, most plaintiffs are unlikely to survive summary judgment. In this context, the elements of nuisance — causation and unreasonableness – seem particularly difficult to prove. Plaintiffs do, however, deserve access to discovery to help establish their claims.
Second, even when some plaintiffs eventually prevail, the implications could be limited. For instance, the district court could have crafted its holding to apply only to the residents of Kivalina. Alternatively, multidistrict litigation could help keep the amount of cases manageable, or courts could adjust tort compensation schemes for climate change rulings. In any event, no decision a court might issue would prevent Congress from preempting it, for example, by setting a standard level of emissions below which companies could not be held liable. Simply allowing discovery to occur in these cases will add to the costs and risks of emitting large amounts of greenhouse gases for corporations, perhaps prompting them to take mitigating actions. If the costs and risks are great enough, it might even prompt Congress to pass national legislation.
Certainly the complexities of climate change would be better addressed through comprehensive legislation and planning. Yet until this happens, a court can apply tort law. Compensation schemes and equitable remedies could be adjusted specifically for climate change-related damages. In turn, Congress can override any illogical or unreasonable court decisions by passing legislation.
Conclusion
In conclusion, the Constitution does not reserve climate change to Congress or the executive. Federal common law contains a long history of judicial standards in cases involving interstate pollution disputes. The elected branches have made initial policy determinations about climate change policies. Furthermore, there is good reason to question whether the political question doctrine was ever meant it to be applied to federal common law in general, and to climate cases in particular. While federal common law is not the ideal way to resolve the problems of climate change, it is still a legitimate forum for these plaintiffs. Until Congress passes climate change legislation, political question doctrine does not warrant the dismissal of their cases.

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