Summary: The U.S. Supreme Court’s ruling that states can not use federal common law to restrict greenhouse gas emissions leaves open the questions of whether they can sue under state law and whether climate change victims can seek damages through the courts. The issues are likely to be litigated soon.
Big decisions on greenhouse gases are made in big cities such as Washington, D.C., where the U.S. Supreme Court handed down its long-awaited decision in American Electric Power v. Connecticut (AEP) on June 20, 2011. But the impacts of climate change are playing out in tiny, remote places such as the Alaskan village of Kivalina, where sea levels are rising ominously.
Kivalina will likely be a key battlefield in 2012 in the fight to restrict major producers of heat-trapping gases after the Supreme Court’s decision in AEP that states can not invoke federal common law to limit greenhouse gas emissions. It was the Court’s second ruling on the judiciary’s role in addressing climate change. The first case was Massachusetts v. EPA (Massachusetts), which was decided in 2007. In Massachusetts, the Court narrowly ruled that climate change was real, that states had standing to challenge the EPA’s failure to say anything about it, and that the greenhouse gases were air pollutants under the Clean Air Act. In AEP, the same coalition of states—joined by New York City and three land trusts—sued the nation’s five largest coal-fired electric power corporations seeking an injunction to cap and reduce their carbon dioxide emissions. According to the plaintiff’s complaint, the defendant power companies collectively account for about 10 percent of CO2 emissions in the United States.
AEP was filed in 2004 in the Southern District of New York under federal and state common law, charging the defendants with contributing to the public nuisance of global warming. Recognizing the novelty of these claims, the states nevertheless saw the suit as a way to apply additional pressure on the Environmental Protection Agency and the Bush administration to regulate sources of greenhouse gases under the Clean Air Act. By the time the case got to the Supreme Court, the legal issues had been overtaken by events outside of the courtroom.
Following the Massachusetts decision and a change of administrations, EPA Administrator Lisa Jackson published two endangerment findings under the Clean Air Act that concluded greenhouse gases pose a threat to public health and the environment. This triggered a mandatory duty to adopt regulations to control emissions from power plants, industries, motor vehicles, and other sources. The EPA had also issued rules setting tailpipe emission standards for new cars and trucks and requiring “best available technology” for new sources of greenhouse gas emissions. The EPA was also proposing New Source Performance Standards for existing sources of emissions.
In light of all this, the outcome in AEP was hardly surprising. The Court voted unanimously that federal common law had been “displaced” by the Clean Air Act and the Obama administration’s efforts to regulate emissions. Writing for the Court, Justice Ginsburg said even if the EPA opted not to regulate greenhouse gases, “the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.” She hastened to add, however, that courts would retain their traditional power to review the EPA’s failure to perform any mandatory duties imposed by the Clean Air Act.
Now that the EPA has made the endangerment findings, the option of simply doing nothing is no longer available, although the agency does retain some discretion in how to go about the daunting task of regulating greenhouse gases from many sources. Notably, should Congress heed the call of some legislators and presidential candidates to repeal the EPA’s Clean Air Act authority, the courts could bring federal common law back into play. Also the Supreme Court expressly declined to address the question of whether the states could pursue their public nuisance claims under state common law. The Court simply remanded the case for further consideration, meaning the remaining issues are likely to be litigated soon.
That brings us to Native Village of Kivalina v. ExxonMobile Corp., a significant case for climate change victims. Kivalina is an Inupiat village with about 400 residents on the tip of a barrier reef along the northwest coast of Alaska. The village has historically been sheltered from winter storms by a barrier of sea ice, but rising temperatures have reduced and delayed the accumulation of sea ice in recent years. That’s exposed Kivalina to unprecedented erosion and flooding from otherwise diverted storm surges. The village’s governing body predicts residents will have to relocate at an estimated cost of up to $400 million. In February 2008, Kivalina filed suit against two dozen power companies in federal district court in California in an effort to recover damages for the cost of relocation. Kivalina alleges that the power companies “knew or should have known of the impacts on global warming and on particularly vulnerable communities such as [Kivalina].” Further, the complaint alleges the power companies actively conspired to deceive the public about the dangers of global warming.
The federal district court in Oakland dismissed the Kivalina case for lack of standing and on the ground that the case presented a “political question” that was committed to the other branches of government. The plaintiffs have appealed to the Ninth U.S. Circuit Court of Appeals, where a three-judge panel recently asked tough questions of both sides.
Kivalina is different from AEP v. Connecticut because the village seeks monetary damages instead of a judicially mandated emissions cap and reduction. The relief sought by the plaintiffs in AEP was rejected, in part, because of the Court’s desire to maintain the separation of powers between the branches of government. In Kivalina, however, the plaintiffs claim that the Clean Air Act does not provide for any compensatory damages and therefore should not “displace” the federal common law. Alternatively, Kivalina argues that the case should proceed based on state common law. Ultimately, the Kivalinans say the oil companies should be held strictly liable for the damage in light of their failure to take any steps to lessen the harm. Industry lawyers used to dismiss climate change lawsuits as frivolous, but an ancient way of life may soon disappear in Kivalina. There’s nothing frivolous about that, and those who are causing it should pay for it.