Litigation Seeking to Establish
Climate Change Impacts as a
Common Law Nuisance
Robert Meltz
Legislative Attorney
May 9, 2011
Congressional Research Service
7-5700
www.crs.gov
R41496
CRS Report for Congress
P
repared for Members and Committees of Congress
Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance
Summary
Congressional inaction on climate change has led various entities to pursue climate change
measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure
Congress to act, such entities have looked to international forums, treaty negotiations,
Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional
efforts, and—the topic here—lawsuits seeking to establish climate change impacts as a common
law nuisance. If congressional efforts to block or delay EPA from addressing greenhouse gas
(GHG) emissions are successful, that likely will give added importance to such nuisance suits. As
background, a private nuisance is a substantial and unreasonable invasion of another’s interest in
the private use and enjoyment of land, without involving trespass; a public nuisance is an
unreasonable interference with a right common to the general public.
In litigating a climate-change/nuisance suit, several issues arise at the outset and, if resolved
against the plaintiff, prevent a claim from proceeding. First, there is the question whether the
federal common law of nuisance has been displaced yet by EPA regulation of GHG emissions
under the Clean Air Act. A second threshold issue is standing to sue, which asks whether a given
party is an appropriate one to invoke the jurisdiction of a federal court. As developed by the
Supreme Court, the Constitution requires that for a plaintiff to have standing in federal court,
he/she must show injury in fact, that the injury was caused by the defendant, and that the remedy
sought likely will ameliorate the injury. Suits seeking relief based on climate change claims have
run into difficulty with one or more of these requirements. A third threshold issue is the political
question doctrine, which is designed to restrain the judiciary from inappropriately interfering in
matters reposed in the other branches of government. For example, the defendants in one case
argued that one indicium of a political question—the Constitution’s textual commitment of the
issue to the executive or legislative branch—is displayed by climate change because using a
nuisance case to reduce U.S. CO2 emissions undermines the President’s constitutional authority to
manage foreign relations—in particular, to induce other nations to reduce their CO2 emissions.
There are five common law/nuisance suits addressing climate change now or formerly active. Of
the three no longer active, none were successful. Of the two still-active cases, one has recently
leaped to center stage because the Supreme Court agreed to hear it. In Connecticut v. American
Electric Power Co., Inc., eight states sued five utility companies alleged to be emitting the most
GHGs in the nation through their coal-fired electric power plants. Following a Second Circuit
decision, the Supreme Court agreed on December 6, 2010, to resolve threshold issues in this case.
The other active case is Native Village of Kivalina v. ExxonMobil Corp., in which a coastal
Eskimo village sued 24 oil and energy companies. Plaintiffs claim that the large quantities of
GHGs defendants emit contribute to climate change, which in turn has caused coastal ice to melt,
which in turn has caused coastal erosion that will require relocating the village. This case is
pending before the Ninth Circuit, where it has been stayed pending the Supreme Court’s ruling in
Connecticut.
In early May 2011, the nuisance cases above were joined by 10 lawsuits (with more promised)
seeking to address climate change by an entirely different common law theory: public trust
doctrine. Given their recent filing, there have been no developments in these cases as yet.
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Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance
Contents
I. Introduction ............................................................................................................................. 1
II. Recurring Issues ..................................................................................................................... 2
A. Federal Common Law ...................................................................................................... 2
B. Standing ........................................................................................................................... 3
C. Political Question Doctrine............................................................................................... 4
III. Nuisance Actions Thus Far .................................................................................................... 5
A. Active Cases..................................................................................................................... 5
1. Second Circuit: Connecticut v. American Electric Power Co., Inc................................ 5
2. Ninth Circuit: Native Village of Kivalina v. ExxonMobil Corp...................................... 8
B. Cases Finally Resolved..................................................................................................... 9
1. Fifth Circuit: Comer v. Murphy Oil USA...................................................................... 9
2. Ninth Circuit: California v. General Motors Corp...................................................... 10
3. Second Circuit: Korsinsky v. U.S. EPA....................................................................... 10
IV. A New Common Law Front: Public Trust Suits.................................................................... 11
Contacts
Author Contact Information ...................................................................................................... 12
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Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance
I. Introduction
Congressional inaction on climate change has led various entities to pursue climate change
measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure
Congress to act, such entities have looked to international forums, treaty negotiations,
Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional
efforts, and—the topic here—common law suits, principally seeking to establish climate change
impacts as a nuisance.
Many argue that courts will (and should) be unreceptive to dealing with a global problem such as
climate change through individual common law suits.1 Each suit, after all, brings before the court
only a handful of defendants representing a tiny fraction of the problem. As well, nuisance law
offers no clear standards to apply, asking courts, for example, to weigh vague policy factors. This
is a recipe, it is argued, for inconsistent and confusing results from different courts. Questions of
causation are also substantial: even if the court accepts that man-made greenhouse gas (GHG)
emissions contribute to climate change, how can a plaintiff show that a particular adverse impact
was caused by climate change, and further was caused by the GHG emissions of the defendants?
And should the defendants’ contribution to worldwide GHG emissions be viewed as de
minimis—too small for a court to bother with? Questions of remedy are likely to be particularly
intractable: what amount of emission reduction, or monetary compensation, should be required of
a defendant given the likely miniscule fraction of worldwide GHG emissions contributed by that
defendant? Finally, the law affords courts several easy ways of blocking nuisance-based climate
change litigation, discussed in Part II, should courts decide it is inappropriate. At a minimum, no
one argues that piecemeal litigation is preferable to a coherent legislative scheme.
Nonetheless, the use of common law lawsuits to attack climate change has its defenders, at least
until Congress enacts legislation.2 Plaintiffs argue with some merit that the kinds of harm
attributed to climate change—ecosystem and weather modifications, increased flooding, and
harm to human health—are all harms traditionally covered by nuisance doctrine. Moreover, if
Congress succeeds in barring or postponing EPA regulatory action against GHG emissions under
the Clean Air Act (as seems more likely in light of the November 2010 elections), the nuisance
lawsuit option will gain added attention. Nor can the possibility that nuisance plaintiffs will
prevail in some limited way be ruled out, though none has succeeded thus far. Five nuisance
actions involving GHG emissions have been filed, of which two are still active.
Doubtless there is fascination in efforts to enlist a doctrine as ancient as nuisance to deal with a
problem as contemporary as climate change. By way of background, nuisance law is centuries
old, born in the medieval English courts. Nor has it ever been used to tackle a problem anywhere
1 See, e.g., Daniel A. Farber, Basic Compensation for Victims of Climate Change, 155 U. Pa. L. Rev. 1605, 1649 (2007)
(“Realistically, the greatest function of litigation may be to prod legislative action.”). See also Jim Gitzlaff, Getting
Back to Basics: Why Nuisance Claims Are of Limited Value in Shifting the Costs of Climate Change, 39 Envtl. L. Rptr.
10,218 (March 2009).
2 See, e.g., Randall S. Abate, Public Nuisance for the Environmental Justice Movement: The Right Thing and the Right
Time, 85 Wash. L. Rev. 197 (2010); Matthew F. Pawa, Global Warming: The Ultimate Public Nuisance, 39 Envtl. L.
Rptr. 10,230 (March 2009); Jonathan Zasloff, The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate
Change, 55 UCLA L. Rev. 1827 (2008) (arguing that a nuisance-based climate change regime essentially becomes a
carbon tax); Daniel V. Mumford, Curbing Carbon Dioxide Emissions Through the Rebirth of Public Nuisance Laws—
Environmental Legislation by the Courts, 30 Wm. & Mary Envtl. L. & Policy Rev. 195 (2005); David A. Grossman,
Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum. J. Envtl. L. 1 (2003).
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near as complex as climate change. A nuisance may be either a private nuisance or a public
nuisance. An activity constitutes a private nuisance if it is a substantial and unreasonable invasion
of another’s interest in the private use and enjoyment of land, without involving trespass.3 Private
nuisance actions are brought by the aggrieved landowner. An activity is a public nuisance if it
creates an “unreasonable” interference with a right common to the general public.4
Unreasonableness may rest on the activity significantly interfering with, among other things,
public health and safety. Public nuisance cases are usually brought by the government rather than
private entities, but may be brought by the latter if they suffer special injury.5
Part II of this report notes the recurring threshold issues raised by the use of nuisance law to deal
with GHG emissions and climate change. Part III reviews the five nuisance cases filed to date
attacking GHG emissions and/or climate change impacts. As mentioned, none of these cases has
generated a final decision for plaintiffs as yet. At present, all eyes are on the Supreme Court,
which on December 6, 2010, granted certiorari in Connecticut v. American Electric Power Co.,
Inc., instantly propelling this case to center stage and raising major implications for the other
active case.
II. Recurring Issues
As the court decisions in Part III show, the use of nuisance actions to address GHG emissions
presents the plaintiff with daunting hurdles—each of which must be surmounted at the outset of
the litigation if it is to proceed.6 Following is a brief introduction to the most salient of these
threshold hurdles.
A. Federal Common Law
Because GHG emissions obviously move across state lines, a federal common law of nuisance
seems likely to govern. However, the scope of federal courts’ authority to develop their own
common law, as state courts routinely develop state common law, has long been under Supreme
Court scrutiny. Though the Court announced that it disfavored federal courts developing their
own common law 73 years ago,7 lower federal courts have continued to do precisely that in areas
of national concern, in the absence of an applicable act of Congress. Many federal courts have
decided challenges to interstate pollution based on the federal common law of nuisance, which
generally hews to the same definitions of nuisance as the state cases.
Most important here, federal common law remedies are vulnerable to being displaced
(“preempted”) by acts of Congress. Federal common law, says the Supreme Court, is a “necessary
expedient,” and “when Congress addresses a question previously governed by a decision rested
3 RESTATEMENT (SECOND) OF TORTS § 821D (1979).
4 Id. at § 821B.
5 To have suffered “special injury,” a person must have incurred a different kind of interference than that suffered by
the public at large, not just a greater harm from the same kind of interference. Id. at § 821B comments b. and d.
6 See generally Kevin A. Gaynor et al., Challenges Plaintiffs Face in Litigating Federal Common Law Climate Change
Claims, 40 Envtl. L. Rptr. (News and Analysis) 845 (Sept. 2010); Thomas W. Merrill, Global Warming as a Public
Nuisance, 30 Colum. J. Envtl. L. 293 (2005).
7 Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding that “[t]here is no federal general common law”; rather,
federal courts must apply the law of the relevant state except in matters governed by federal statute or the Constitution).
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on federal common law the need for such an unusual exercise of lawmaking by federal courts
disappears.”8 Otherwise put, “new federal laws and new federal regulations may in time pre-empt
the field of federal common law of nuisance.”9 Thus, a question in some of the climate change
cases has been whether the federal Clean Air Act displaces judge-made federal common law in
the climate change area. The displacement argument was strengthened by the Supreme Court’s
2007 decision in Massachusetts v. EPA,10 holding that EPA has authority under the Clean Air Act
to regulate GHG emissions. It was strengthened further by EPA’s promulgation under the Clean
Air Act of GHG-limiting regulations to take effect January 2, 2011.11 Additional developments
regarding the displacement question are discussed in Part III in connection with the Supreme
Court’s grant of certiorari in Connecticut v. American Electric Power Co., Inc.
If the federal common law of nuisance is deemed preempted, the state common law of nuisance
may be applicable,12 though there are substantial inefficiencies to having to file suit in multiple
states.
B. Standing
The standing inquiry asks whether a given party is an appropriate one to invoke the jurisdiction of
a federal court. Only a party with standing can bring suit in federal court. As developed by the
Supreme Court, standing has constitutional and prudential (court-created) components. The
constitutional side stems from the limitation of federal court jurisdiction in Article III of the
Constitution to “Cases” and “Controversies.” As explicated by the Court, this constraint demands
that a plaintiff in federal court demonstrate that (1) he/she has been or imminently will be injured
in a way that is concrete and particularized, and not speculative; (2) the injury is or will be caused
by the defendant; and (3) there is a likelihood that the injury will be redressed by a favorable
court decision.13
One can see readily that a suit seeking relief from climate change impacts may run into difficulty
with each of the three constitutional standing requirements. For example, climate change
modeling generally predicts only large-scale effects, allowing defendants to argue in many cases
that the particular injury suffered by plaintiff was not shown to have been caused by climate
change. Or that the defendants’ GHG emissions were (or will be) at best a de minimis contributor
to the injury. The third, redressability prong of standing suggests that plaintiffs seeking injunctive
relief from a small number of GHG emitters may have a tougher time establishing standing than
8 Milwaukee v. Illinois, 451 U.S. 304, 314 (1980) (“Milwaukee II”).
9 Illinois v. Milwaukee, 406 U.S. 91, 107 (1972) (“Milwaukee I”). Indeed, there is a presumption in favor of
preemption. Matter of Oswego Barge Corp., 664 F.2d 327, 335 (2d Cir. 1981).
10 549 U.S. 497 (2007).
11 75 Fed. Reg. 25,323 (May 7, 2010) (EPA GHG emission standards for new light-duty motor vehicles, promulgated
jointly with the National Highway Traffic Safety Administration’s revised Corporate Average Fuel Economy standards
for the same vehicles); 75 Fed. Reg. 31,514 (June 3, 2010) (EPA’s Clean Air Act “tailoring rule” limiting New Source
Review of new and modified stationary sources of GHG emissions and limiting Clean Air Act Title V permitting
requirements).
12 International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (although federal common law of interstate water pollution
was preempted by Milwaukee II, state common law applied to Vermont citizens’ suit against a New York paper
company for pollution of Lake Champlain). Federal and state common law of nuisance cannot apply simultaneously.
See Milwaukee II, 451 U.S. at 314 n.7 (“if federal common law exists, it is because state law cannot be used”).
13 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
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those seeking monetary damages to pay for the costs of responding to climate change; the latter
remedy is more likely to “redress” the harm.
Note that state plaintiffs may have a choice. They may bring suit as owner of natural resources or
other property, in which case they face the same standing requirements as private entities,
described above. Alternatively, states may sue in their parens patriae capacity—that is, as
protector of their quasi-sovereign interests—in which case the Article III requirement is
differently stated. For parens patriae standing, a state must articulate a quasi-sovereign interest—
that is, one apart from the interests of particular private parties. A state’s interest in the “health
and well-being—both physical and economic—of its residents in general,”14 if a substantial
portion of those residents is affected, is a well-established quasi-sovereign interest.15 Owing to
these quasi-sovereign interests, the Court has said recently (in its only climate change case) that
states are “not normal litigants for purposes of invoking federal jurisdiction,” but rather face a
lower standing threshold.16
As noted, standing doctrine has a prudential component as well as a constitutional one. Principles
of prudential standing are not dictated by Article III; rather, they are “judicially self-imposed
limits on the exercise of federal jurisdiction.”17 One such principle is “the rule barring
adjudication of generalized grievances more appropriately addressed in the legislative
branches.”18 Plainly this may be a concern with cases alleging climate change injuries, at least
where such injuries are not concrete and personal.19
C. Political Question Doctrine
A federal court will refuse to resolve a case it regards as presenting a “political question,” owing
to the separation of powers in the Constitution.20 Political question doctrine is “designed to
restrain the Judiciary from inappropriate interference in the business of the other branches of
Government.”21 Long ago, Chief Justice John Marshall wrote: “[q]uestions, in their nature
political, or which are, by the constitution and laws, submitted to the executive, can never be
made in this court.”22
14 Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982).
15 Id. at 604-605.
16 Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
17 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 (2004), quoting Allen v. Wright, 468 U.S. 737, 751
(1984).
18 Elk Grove Unified School Dist., 542 U.S. at 12.
19 The Supreme Court has expressly rejected the argument that just because climate change causes widespread harm,
standing doctrine presents an insurmountable obstacle to establishing federal jurisdiction. But “[w]hile it does not
matter how many persons have been injured by the alleged action [being challenged], the party must show that the
action injures him in a concrete and personal way.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007), quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring).
20 Baker v. Carr, 369 U.S. 186, 210 (1962). See also Massachusetts, 549 U.S. at 516.
21 United States v. Munoz-Flores, 495 U.S. 385, 394 (1990).
22 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
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Deciding whether a matter has been committed by the Constitution to a nonjudicial branch of
government is, however, a “delicate exercise,”23 and is decided on a case-by-case basis. The
factors indicating a non-justiciable political question were famously stated by the Supreme Court
in Baker v. Carr in 1962.24 Baker stated six factors, of which the first three have played a role in
the climate-change nuisance cases:
Prominent on the surface of any case held to involve a political question is found [(1)] a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or [(2)] a lack of judicially discoverable and manageable standards for
resolving it; or [(3)] the impossibility of deciding [the issue] without an initial policy
determination of a kind clearly for nonjudicial discretion....
For example, the utility defendants in Connecticut v. American Electric Power Co., Inc.,
discussed below, argued that the first factor—textually demonstrable constitutional commitment
of the issue to the executive or legislative branch—was triggered because using a nuisance case to
reduce U.S. emissions of CO2 (the major GHG) would interfere with the President’s authority to
manage foreign relations. One reason: unilateral reductions of U.S. CO2 emissions would hinder
the President’s efforts to induce other nations to reduce their emissions.25
Yet Baker made clear it was setting a high threshold for nonjusticiability. Unless one of the six
factors is “inextricable” from the case, Baker said,26 the case should not be dismissed on political
question grounds. A political question case, it said, is different from one that is political merely in
the sense that it involves an issue being intensely debated in the political realm.27 Since Baker
was decided almost a half-century ago, the Court has found few issues to present political
questions, but the doctrine has been ubiquitous in the nuisance/climate change litigation.
III. Nuisance Actions Thus Far
A. Active Cases
1. Second Circuit: Connecticut v. American Electric Power Co., Inc.
Eight states, New York City, and three private land trusts brought nuisance actions, later
consolidated, against five electric utility companies—chosen as allegedly the nation’s largest
emitters of CO2, the major GHG, through their fossil-fuel electric power plants. Plaintiffs sought
to require the electric utilities to abate their contribution to the nuisance of climate change by
reducing their CO2 emissions. No precise amount of emissions reduction was specified. They
cited both the federal common law of nuisance, and, in the alternative, state common law and
statutory nuisance law.
23 Baker, 369 U.S. at 211.
24 369 U.S. 186, 216 (1962).
25 582 F.3d 309, 324 (2d Cir. 2009).
26 Baker, 369 U.S. at 217.
27 Id. See also U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 458 (1992).
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In 2005, the federal district court held that because resolving the issues in the case required a
balancing of economic, environmental, foreign policy, and national security interests, the court
needed guidance from the political branches.28 The absence of such guidance (there being no
federal regulation of CO2 as of 2005) meant to the court that the case satisfied one of the factors
identified in Baker v. Carr as indicating a political question—namely, the case was “impossib[le]
[to] decid[e] without an initial policy determination of a kind clearly for nonjudicial discretion.”
So the suit was dismissed.
Plaintiffs’ appeal to the Second Circuit was notable in part because then-judge Sonia Sotomayor
was on the three-judge panel that heard oral argument. Her later nomination to the Supreme Court
while the case was under consideration by the panel ended her involvement in the case. The
remaining judges on the panel, however, elected not to rehear the case with a new third judge.
Instead, they held in 2009 that the district court had erred when it dismissed the case on political
question grounds.29 Where a case appears to be “an ordinary tort suit,” the court said, there is no
“impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretion.”30
Additionally, the circuit court found that all plaintiffs had standing, and that all may properly
maintain actions under the federal common law of nuisance. Finally, the circuit court held that the
federal common law of nuisance had not been displaced by the regulatory scheme established
under the Clean Air Act as of the date of decision,31 or by the collective force of various other
statutes touching in some way on GHGs or climate change (e.g., the National Climate Program
Act of 1978).32
The Supreme Court granted certiorari on December 6, 2010, to resolve the three threshold issues
addressed by the Second Circuit33—the three threshold issues discussed in Part II of this report.
As described by petitioners (defendants below), the issues presented to the Court are (1) whether
plaintiffs have standing to seek judicially fashioned emissions caps for the utilities’ contribution
to climate change, (2) whether a cause of action to cap CO2 emissions exists under federal
common law in light of the Clean Air Act assigning responsibility for regulating such emissions
to EPA, and (3) whether plaintiffs’ claims are governed by “judicially discoverable and
manageable standards” or could be resolved without “initial policy determination[s] of a kind
clearly for nonjudicial discretion” (the second and third Baker v. Carr factors indicating a
political question).
28 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
29 582 F.3d 309 (2d Cir. 2009).
30 Id. at 331.
31 The court warned that the question whether the federal common law of nuisance had been displaced might be
answered differently at some future time when EPA actually regulates GHG emissions under the Clean Air Act. On
January 2, 2011, that future time arrived. See note 11 supra and accompanying text.
32 Because the court approved the federal common law of nuisance claims, it chose not to adjudicate the alternative
state-law nuisance claims.
33 No. 10-174. The name of the case in the Supreme Court is American Electric Power Co., Inc. v. Connecticut.
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It has not escaped attention that the Supreme Court’s grant of certiorari came despite the presence
of several factors often leading it to pass up a case. There was no split in the circuits;34 the
decision below was interlocutory (it did not finally resolve the case); and subsequent
developments might have made the Court’s intervention unnecessary (EPA regulation of GHG
emissions taking effect January 2, 2011, might have led the district court on remand to find the
federal common law claims displaced).35 Thus, it was speculated that the grant of certiorari was
motivated at least in part by the likely desire of the Court’s conservatives to limit the broad
reading of Article III standing in Massachusetts v. EPA,36 the Court’s 2007 climate change
decision. Also favoring grant of certiorari was the fact that the United States filed a brief on
behalf of the Tennessee Valley Authority, one of the utility defendants, on the side of the private-
utility petitioners.
Following the grant of certiorari, amicus participation has been heavy—32 briefs filed in all. One
amicus brief, on the side of the utilities, was filed by 23 states, meaning that combined with the
eight petitioner states, a total of 31 states are involved in this case.
At the oral argument before the Court, almost all the questions from the justices were directed at
the displacement issue—that is, given that EPA regulation of GHG emissions from cars and some
large stationary sources has now taken effect, is there is any room left for federal judges to be
setting emission standards based on common law? The Second Circuit had explicitly noted this
future possibility when it ruled in 2009 prior to EPA regulation of GHG emissions.37 Favoring the
displacement argument, several Supreme Court justices expressed skepticism that a district court
was an institutionally competent and/or proper forum for dealing with climate change, at least in
the total absence of legislative or agency standards to apply. On the other hand, the justices are
doubtless aware of continuing efforts in the 112th Congress to repeal EPA’s authority to regulate
GHG emissions, which might conceivably undercut their support for displacement.
The Court’s eventual decision, expected by June 2011, will almost certainly not reach the merits,
since the petition for certiorari raised only threshold issues. A win for the petitioners (utilities) on
any one of the three threshold issues results in dismissal of the federal claims in the case, leaving
only the state claims. By contrast, a win by the respondents (states and private land trusts) on all
three threshold issues does not ensure an ultimate win for them; it simply means that the case
goes back to the district court for a trial on, among other things, whether a federal common law
nuisance exists on the facts presented. All in all, ultimate success for the states and private land
trusts will be an uphill climb. The importance of the litigation ultimately may well be in its
contribution to the law of standing or when federal common law is displaced, not in addressing
climate change.
34 However, petitioners point out in their reply brief on the petition for certiorari that the Second Circuit decision is at
odds with all the district court climate change decisions.
35 See note 11 supra and accompanying text. To the displacement argument, the state plaintiffs respond that the new
EPA regulations will not preempt federal common law applicable to the coal-fired power plants at issue in the lawsuit
because the new regulations target new and modified stationary sources of emissions, not the existing ones that are the
basis of the suit. On the other hand, plaintiffs concede that if EPA were to adopt GHG emission standards for industry
sectors such as coal-fired power plants (as it is reportedly considering), federal regulation would reach existing GHG
emission sources and federal common law suits would have to be dismissed. See Gabriel Nelson, EPA could end
“nuisance” case, enviros tell Supreme Court, E&E News PM (November 4, 2010).
36 549 U.S. 497 (2007). See four-Justice dissent by Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito,
id. at 535.
37 See note 31 supra and accompanying text.
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2. Ninth Circuit: Native Village of Kivalina v. ExxonMobil Corp.
An Inupiat Eskimo village on the northwest Alaska coast sued 24 oil and energy companies,
claiming that the large quantities of GHGs they emit contribute to climate change. Climate
change, the village contends, is destroying the village by melting Arctic sea ice that formerly
protected it from winter storms, leading to massive coastal erosion that will require relocating the
village’s inhabitants at a cost of $95 million to $400 million. Plaintiffs invoke the federal
common law of public nuisance, and state statutory or common law of private and public
nuisance. They further press a civil conspiracy claim, asserting that some of the defendants have
engaged in agreements to participate in the intentional creation or maintenance of a public
nuisance—that is, global warming—by misleading the public as to the science of global warming.
The suit seeks monetary damages.
In 2009, the district court held that the federal nuisance claim was barred by the political question
doctrine (contrary to the Second Circuit’s holding in Connecticut nine days earlier) and,
independently, for lack of Article III standing.38 Accordingly, defendants’ motion to dismiss was
granted. As to the political question issue, the court found that two Baker factors pointed to
climate change presenting a political question. First, said the court, there is “a lack of judicially
discoverable and manageable standards,” and second, a decision cannot be rendered “without an
initial policy determination of a kind clearly for nonjudicial discretion.”
As for standing, the district court rejected plaintiffs’ argument that it was enough for them to
establish that defendants “contributed to” their injuries. The court explained that in the absence of
federal standards limiting GHG emissions, no presumption arises that any defendant’s actions
harmed plaintiffs.39 “Without that presumption, and especially given the extremely attenuated
causation scenario alleged in Plaintiffs’ Complaint, it is entirely irrelevant whether any defendant
‘contributed’ to the harm.”40 Nor, in view of the undifferentiated nature of GHG emissions from
all global sources and their accumulation over long periods, is there any way to link any
particular effect of climate change to a particular entity. Having dismissed the federal claim
giving it original jurisdiction, the court declined to exercise its supplemental jurisdiction over the
state law claims.
The village appealed to the U.S. Court of Appeals for the Ninth Circuit,41 which has stayed the
case pending the Supreme Court decision in American Electric Power Co. v. Connecticut.
As an aside, the liability insurer of one of the Kivalina defendants has filed suit seeking a
declaratory judgment that should the defendant be found liable for damages in Kivalina, the
insurer’s general liability policies with the defendant will not apply.42
38 663 F. Supp. 2d 863 (N.D. Cal. 2009).
39 As to the “absence of federal standards,” this is due to change on January 2, 2011. See note 11 supra and
accompanying text.
40 Id. at 880.
41 No. 09-17490.
42 Steadfast Ins. Co. v. The AES Corp., No. 08-858 (Arlington County, Va., Cir. Ct. filed July 2008).
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B. Cases Finally Resolved
1. Fifth Circuit: Comer v. Murphy Oil USA
In this asserted class action, owners of Mississippi Gulf coast property damaged by Hurricane
Katrina sued certain oil, coal, and chemical companies doing business in the state under state law.
They allege a multistep chain of causation—that the defendant companies emitted substantial
amounts of GHGs, which contributed to global warming, which raised the sea level and made the
waters of the Gulf of Mexico warmer, which caused Hurricane Katrina to hit the Gulf coast with
greater ferocity, which increased the harm to plaintiffs’ property caused by the hurricane. On this
basis, plaintiffs asserted various state-law tort claims, including negligence, nuisance (public and
private), and trespass, and seek compensatory damages. They also request punitive damages for
gross negligence. Further, they claimed fraudulent misrepresentation and conspiracy to commit
fraudulent misrepresentation, alleging that the oil and coal companies disseminated
misinformation about global warming. Finally, plaintiffs made claims against their home
insurance companies (e.g., breach of fiduciary duty claim for misrepresenting policy coverage,
and violation of a state consumer-protection act) and their mortgage companies (arguing that they
may not claim sums owed by plaintiffs for the value of the mortgaged property that was
uninsured).
In a succinct order with no discussion, the district court, sitting in diversity, dismissed the action
in 2007 for lack of plaintiff standing.43 The court also found plaintiffs’ claims nonjusticiable
under the political question doctrine.
In 2009, a three-judge panel of the Fifth Circuit reversed and remanded.44 Relying heavily on the
Supreme Court’s approval of standing in Massachusetts v. EPA, the panel ruled that plaintiffs here
similarly had Article III standing to assert their negligence, nuisance, and trespass claims. As in
Massachusetts, at least at the pleading stage, the asserted chain of causation described above was
not too attenuated. Plaintiffs, however, were held to lack standing as to their other claims. On the
other major issue in the case, the circuit court held that the tort claims were not, contrary to the
district court, barred by political question doctrine. This ruling on the political question argument
came three weeks after the identical ruling by the Second Circuit in Connecticut v. American
Electric Power, supra, though the Fifth Circuit seemed to be aware of only the district court
decision in that case.
At this point, events took an odd turn. In early 2010, after vacating the panel ruling and taking the
case en banc, the Fifth Circuit made the unusual announcement that it lacked a quorum, so the
appeal had to be dismissed.45 As the court explained, seven of the court’s 16 active-duty judges
had initially recused themselves, leaving only nine judges to rule on the en banc petition. Those
judges had decided 6-3 to vacate the panel decision and grant en banc rehearing. Subsequently,
one of those nine recused herself, leaving only eight judges in regular active service who were not
disqualified to hear the case. Since the requisite quorum to proceed is a majority of the 17
authorized active-duty judges on the court (including one vacancy)46—that is, nine judges—the
43 2007 WL 6942285 (S.D. Miss. August 30, 2007).
44 585 F.3d 855 (5th Cir. 2009).
45 607 F.3d 1049 (5th Cir. 2010).
46 28 U.S.C. § 46(c)-(d).
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remaining eight judges concluded 5-3 they could not proceed with en banc review. Indeed, and
more strikingly, they concluded they could not even reinstate the vacated panel decision.
The quorum ruling’s effect was to deny appeal of the original district court decision (which the
Fifth Circuit effectively reinstated). Arguing they have a right to have their appeal decided, the
plaintiffs petitioned the Supreme Court on August 26, 2010, for a writ of mandamus directing the
Fifth Circuit to reinstate petitioners’ appeal and return the case to the three-judge panel for
adjudication.47 On January 10, 2011, the Court denied the petition, leaving the district court
decision in favor of defendants as the final (and only) judicial resolution of the case.
2. Ninth Circuit: California v. General Motors Corp.
This action was filed by California against several automobile manufacturers based on the alleged
contributions of their vehicles, through their GHG emissions, to climate change impacts in the
state. The suit asserted that these impacts constitute a public nuisance under federal common law,
and sought monetary damages (recall that Connecticut v. American Electric Power seeks
injunctive relief).
In 2007, the district court dismissed the suit on a political-question rationale—namely, “the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretion.”48 The need for an “initial policy determination” by the political branches was
supported, in the court’s view, by the complexity of the climate change issue, the need for
political guidance in divining what is an “unreasonable” interference with the public’s rights
(recall the definition of a public nuisance on page 2), and the global warming debate in the
political branches. Ironically, the environmental “win” in Massachusetts v. EPA was cited by the
court against the state, both because that decision found authority over GHG emissions to lie with
the federal government and because it recognized a state’s standing to press its grievances at the
federal level.
California appealed to the Ninth Circuit, but in 2009 motioned for voluntary dismissal, which the
circuit granted. Dismissal was sought as part of an agreement between the state, the Obama
Administration, and the automobile manufacturers.
3. Second Circuit: Korsinsky v. U.S. EPA
Mr. Korsinsky filed this pro se suit alleging, in a difficult-to-understand complaint, that GHG
emissions, by contributing to climate change, and numerous other pollutants threatened his health
due to his enhanced vulnerability as an older person with sinus problems. He appeared to be
requesting an injunction ordering EPA to require less pollution and ordering polluters to use his
invention for reducing CO2 emissions. The district court dismissed for lack of standing, and the
U.S. Court of Appeals for the Second Circuit affirmed on the same ground in 2006, explaining
that plaintiff’s claim that global warming may cause him unspecified future injuries is “too
speculative.”49
47 In re Ned Comer (No. 10-294).
48 2007 WL 2726871 (N.D. Cal. September 17, 2007).
49 192 Fed. Appx. 71 (2d Cir. 2006).
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IV. A New Common Law Front: Public Trust Suits
In early May 2011, the nuisance lawsuits above were joined by 10 suits seeking to address
climate change by an entirely different common law theory. At that time, teenagers and children
(through their guardians ad litem50) plus a few environmental groups filed suits against the United
States,51 plus the states of Alaska, Arizona, California, Colorado, Minnesota, New Mexico,
Oregon, Montana, and Washington. The claim is that the respective governments have a public
trust responsibility to protect the atmosphere, and have failed to exercise their trustee
responsibility to deal with the threat of global warming. Each suit asks the court for declaratory
relief proclaiming that the atmosphere is a public trust resource and that the government in
question has a fiduciary duty as trustee to protect it. The Montana suit is unique in alleging a
basis for extending the public trust to the atmosphere under the state constitution and state
statute.52 Some of the suits ask for injunctive relief as well—as, for example, the suit against the
United States, which asserts that the federal government has violated its trustee duties by
allowing unsafe amounts of GHGs into the atmosphere and asks for an injunction requiring it to
take action “consistent with the United States government’s equitable share of the global effort.”
None of the suits seek money damages.
Press reports indicate that Our Children’s Trust, an Oregon nonprofit, is leading the litigation
effort, and that attorneys representing teenagers and children are preparing to file suits or
petitions in every state and the District of Columbia.
By way of background, the public trust doctrine is an ancient common law principle—traceable
back to Roman law and the Magna Carta—asserting that certain natural resources are held by the
sovereign in special status.53 Key aspects of that special status are that government may neither
alienate public trust resources nor, more pertinent here, permit their injury by private parties.
Rather, government has an affirmative duty to safeguard these resources for the benefit of the
general public. The doctrine is generally a principle of state law, though there is limited
recognition of a federal counterpart. After tidelands and the beds of navigable waterways, fish and
wildlife are the natural resources most traditionally associated with the public trust doctrine; as
far as preliminary research shows, courts have not yet applied the doctrine to the atmosphere, as
the climate change/public trust lawsuits are seeking. That is not the only obstacle these suits may
encounter—many of the same concerns running through the common law of nuisance cases
described above doubtless will rear their heads in the public trust suits.
50 That is, guardians for the purposes of the lawsuit—often appointed by a court when the plaintiff (or defendant) is a
minor. The guardians ad litem in the suits here are chiefly the parents of the plaintiffs.
51 Alec. L. v. Jackson, No. _______ (N.D. Cal. filed May 4, 2011).
52 Barhaugh v. State of Montana, No. OP 11-0258 (Mont. Supreme Ct. filed May 4, 2011). In the Montana state
constitution, the complaint cites art. IX, sec. 1 (“The state … shall maintain … a clean and healthful environment in
Montana for present and future generations.”), and art. II, sec. 3 (“All persons are born free and have certain inalienable
rights. They include the right to a clean and healthful environment....”).
53 See generally Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 69
Mich. L. Rev. 471 (1970), and Jan S. Stevens, The Public Trust: A Sovereign’s Ancient Prerogative Becomes the
People’s Environmental Right, 14 U.C. Davis L. Rev. 195 (1980).
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Author Contact Information
Robert Meltz
Legislative Attorney
rmeltz@crs.loc.gov, 7-7891
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