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TOXIC TORTS VERDICT REPORTS
COMMENTARY
Climate Change Litigation:
Familiar Theories of Recovery
By Jonathan B. Shoebotham, Esq.
Jonathan B. Shoebotham of Thompson & Knight discusses plaintiffs’ novel use of public nuisance claims
in cases seeking damages for global warming.
and arguments that have proven successful in mass-tort litigation. They will no longer simply rely on traditional causes of
action like public nuisance or trespass.
S
PRIOR TORT SUITS OVER GLOBAL
WARMING: DEFENDANTS 4, PLAINTIFFS 0
everal significant tort lawsuits have been filed during
the previous three years by plaintiffs who seek damages
allegedly caused by global warming. The most recent of
these cases received a splash of media attention and public
interest. The governing bodies of an Alaskan Inupiat village
of about 400 people filed a lawsuit Feb. 26 in a California federal court against dozens of oil companies, electric power companies and coal mining interests.
The plaintiffs in Native Village of Kivalina v. ExxonMobil
Corp. seek up to $400 million in damages for the costs to relocate the village.1 The lawsuit claims that Kivalina is becoming
uninhabitable because global warming has reduced the sea ice
that acts as a protective barrier against coastal storms that batter the village. The complaint alleges that storms “now routinely batter Kivalina and are destroying its property to the
point that Kivalina must relocate or face extermination.”2
Before Kivalina, four significant lawsuits in the United
States sought damages or injunctions on tort claims involving
global warming. The cases were primarily based upon the legal
theory of public nuisance. All four lawsuits were dismissed in
response to defense motions citing, among other things, lack
of standing or the “political question” doctrine, which
requires courts to decline jurisdiction over issues that should
be reserved for the political branches.
The complaint in Kivalina now adds detailed allegations of
conspiracy and concert of action by the individual corporate
defendants and their industry groups. Kivalina alleges that
many of the defendants, including BP America and
ExxonMobil, conspired through their individual actions and
their industry groups to confuse and deceive the public about
the causes and effects of global warming.
If these claims, theories and arguments seem familiar, it is
because they are not new; they have long been the focus of
tobacco and asbestos litigation. Kivalina signals a new phase in
the development of global warming litigation. The plaintiffs
now intend to use conspiracy and concert-of-action theories
20
Tort lawsuits seeking damages for global warming have been
unsuccessful. They have primarily relied on the theory of public nuisance. To date, they all have been dismissed based upon
lack of standing or the political-question doctrine.
In 2004 eight states, New York City and three private parties filed a federal court lawsuit against five power companies
that allegedly were the country’s largest emitters of carbon
dioxide. The complaint in Connecticut v. American Electric
Power Co. said the defendants released about 25 percent of
the U.S. electric power sector’s total carbon dioxide emissions.3 The plaintiffs further alleged that U.S. electric power
plants were responsible for 10 percent of global carbon dioxide emissions from human activities.
The lawsuit was based on federal and state common law and
sought an order holding the defendants jointly and severally
liable for contributing to an ongoing public nuisance — global warming — and requiring each company to cap and ultimately reduce its emissions of carbon dioxide.
The trial court dismissed the case in September 2005, saying the lawsuit presented political questions that are consigned to the political branches of our government, not to the
judiciary. The court said it would be impossible to decide the
case without making an “initial policy determination” about
global climate change that is more appropriately an undertaking for Congress or the executive branch.
The opinion contains a lengthy review of responses by
Congress and the White House to the threat of global warming. The court noted that as early as 1978 Congress established
a “national climate program” to improve the understanding of
climate change through research, data collection, assessments,
information dissemination and international cooperation.
“Looking at the past and current actions (and deliberate
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inactions) of Congress and the executive [branch] within the
United States and globally in response to the issue of climate
change merely reinforces my opinion that the questions raised
by plaintiffs’ complaints are non-justiciable political questions,” U.S. District Judge Loretta A. Preska wrote. “Because
resolution of the issues presented here requires identification
and balancing of economic, environmental, foreign policy
and national security interests, ‘an initial policy determination of a kind clearly for non-judicial discretion is required.’”4
The second of these pre-Kivalina tort lawsuits was Korsinsky
v. EPA, which was filed in 2005 by a pro se plaintiff in New
York federal court.5 The complaint sought relief under federal
and state public nuisance laws for the damages caused by global warming. The plaintiff alleged the defendants had contributed to global warming by emitting 6,500 million tons of
carbon dioxide every year and failing to implement “practical,
feasible and economically viable options to eliminate carbon
dioxide emissions.”6
The court dismissed Korsinsky on the grounds that the
plaintiff lacked standing to bring the lawsuit. The court noted
that the plaintiff was required to satisfy three elements to
establish standing:
• An injury-in-fact that is concrete and particularized and actual or imminent rather than
conjectural or hypothetical;
• A causal connection between the injury and
the alleged conduct; and
• The likelihood that the injury will be
redressed by a favorable decision.
The plaintiff claimed that he had suffered from sinus-related
diseases and developed a mental illness from learning of the danger of pollution. The court said these claims of injury were not
sufficient to confer standing for the plaintiff to bring a lawsuit to
hold the defendants liable for contributions to global warming.
The next tort lawsuit came in the aftermath of Hurricane
Katrina, Comer v. Murphy Oil USA.7 Several Mississippi residents filed the federal court suit in April 2006 against numerous
oil companies, chemical manufacturers and coal mine operators.
The plaintiffs claimed that the defendants’ activities and emission of greenhouse gases contributed to global warming, which
then caused a rise in sea level and an increase in the strength,
magnitude and scope of hurricanes. The suit said the defendants
proximately and directly caused Katrina’s destructive capacity.
The third amended complaint in Comer added many causes
of action and theories that had not been included in earlier
tort cases over global warming: unjust enrichment, civil conspiracy and aiding and abetting, public and private nuisance,
trespass, negligence, and fraudulent misrepresentation and
© 2008 Thomson Reuters/West and ALM Properties, Inc.
SEPTEMBER 2008
concealment.8 The plaintiffs also attempted to anticipate the
defendants’ assertion of the political question doctrine. The
complaint said:
To the extent that this petition raises political issues,
those issues are subordinate to the plaintiffs’ physical and
monetary damages. Furthermore, although global warming causes tremendous damage to the environment, public health, and public and private property every year,
there is a dearth of meaningful political action in the
United States to address global warming problems. Thus,
to the extent that the political process has failed to provide people harmed by global warming with means to
recover for their injuries, the courts must execute their
constitutional mandate embodied in Article III of the
U.S. Constitution.9
Despite the plaintiffs’ effort to avoid the political question
doctrine, the trial court dismissed the case in September 2007
based on lack of standing and because the claims were not justiciable under the political question doctrine.
In the last pre-Kivalina tort lawsuit, People v. General Motors
Corp., the state of California sued six automakers for public
nuisance under federal and state law in September 2006.10 The
suit said the defendants produce vehicles that emit more than
289 metric tons of carbon dioxide every year, which constitutes more than 20 percent of the human-generated carbon
dioxide emissions in the United States and more than 30 percent of such emissions in California.
The state sought to hold each defendant jointly and severally liable for creating, contributing to and maintaining a public nuisance. The complaint sought monetary damages, attorney fees, and a declaratory judgment for future monetary
expenses and damages incurred by the state in connection
with the public nuisance of global warming.
U.S. District Judge Martin J. Jenkins dismissed the case in
September 2007. As with Connecticut v. AEP and Comer, the
judge said tort claims based on global warming raise non-justiciable political questions. The opinion contained a lengthy
and interesting section that recounts the numerous actions of
Congress and the executive branch since 1978 to “understand
and address the complex issue of global warming.”11 The judge
then concluded that injecting the court “into the global w
arming thicket at this juncture” would require an initial policy determination of the type reserved for the political branches of government:
A judicial determination of monetary damages for plaintiff’s global warming nuisance tort would improperly
place this court into precisely the geopolitical debate
more properly assigned to the coordinate branches and
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would potentially undermine the political branches’
strategic choices by “weaken[ing] U.S. efforts to persuade
key developing countries to reduce the [greenhouse gas]
intensity of their economies.”12
Through their conspiracy claims, the Kivalina residents will
attempt to prove that the acts of an industry or large group of
defendants, as opposed to only one defendant or a few defendants, caused global warming.
Judge Jenkins also said the U.S. Supreme Court’s recent
decision in Massachusetts v. EPA underscores the conclusion
that policy decisions concerning the authority and standards
for carbon dioxide emissions lie with the political branches of
government.13 He noted that underpinning the Supreme
Court’s analysis is the concept that the authority to regulate
carbon dioxide lies “with the federal government and more
specifically with the EPA as set forth in the [Clean Air Act].”14
They also will argue that these theories of liability allow the
imposition of collective liability upon a group of defendants
without the need to meet the difficult evidentiary challenge of
proving damages specifically caused by any one defendant’s
conduct or any one defendant’s contribution to global warming.
The judge said the Massachusetts decision reinforces his
conclusion that California’s tort claim “would require this
court to make the precise initial carbon dioxide policy determinations that should be made by the political branches, and
to the extent that such determination falls under the [Clean
Air Act], by the EPA.”15
KIVALINA: WILL IT ALSO BE DISMISSED?
Will the Kivalina case suffer the same fate as its predecessors? Some aspects of the case make this difficult to predict.
Most notable are the plaintiffs’ identities and their focus on
conspiracy and concert-of-action claims.
The Kivalina residents are in a unique position. To assert
standing, they can claim that they contribute very little to climate change because they make their living from hunting and
fishing but have suffered special damages from global warming,
which affects the Arctic region more severely than other parts
of the world. (According to one law professor’s article, which
was released only weeks before the filing of the Kivalina case,
the Inuit people are “a strong plaintiff” in a global warming
lawsuit for a variety of geographic and cultural reasons.16)
The Kivalina complaint also focuses on claims for civil conspiracy and concert of action. Although these types of claims
were included in the Comer complaint along with many other
causes of action, it is clear that they will be the focus of
Kivalina. The Kivalina complaint alleges that some of the corporate defendants participated in a conspiracy to mislead the
public about the science of climate change, either individually or through industry groups or trade associations, with the
objective of creating unwarranted doubts about the existence
of global warming and/or its specific causes.
The Kivalina complaint is transparent in its use of conspiracy theories and arguments previously used in mass-tort cases
like the tobacco litigation. Using these theories of recovery
may provide the Kivalina plaintiffs with advantages compared
with previous tort plaintiffs in climate change lawsuits.
22
Perhaps because of their unique geography, culture and theories of recovery, the Kivalina plaintiffs may have better arguments on standing, liability and causation.
However, they still must overcome the hurdle that thwarted their predecessors: convincing the court that their lawsuit
does not raise non-justiciable political questions that can be
decided only by Congress or the executive branch.
Given the balancing of political, scientific, economic, environmental, foreign policy and national security interests
raised by the issues of global warming, this may prove to be an
insurmountable hurdle, even for the people of Kivalina.
NOTES
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Native Village of Kivalina et al. v. ExxonMobil Corp. et al.,
No. 4:2008-cv-1138, complaint filed (N.D. Cal. Feb. 26, 2008).
Id. at 185.
Conn. v. Am. Elec. Power Co. et al., 406 F. Supp. 2d 265
(S.D.N.Y. 2005).
Id. at 273-74.
Korsinsky v. EPA et al., 2005 WL 2414744 (S.D.N.Y. 2005).
Id. at *1.
Comer v. Murphy Oil USA et al., No. 1:05-cv-00436-LTS-RHW, complaint
filed (S.D. Miss. Apr. 19, 2006).
Id.
Id. at 12-13.
People v. Gen. Motors Corp. et al., 2007 WL 2726871
(N.D. Cal. 2007).
Id.
Id.
Mass. v. EPA, 127 S. Ct. 1438 (Apr. 2, 2007). The Supreme Court
held that the EPA had the authority to regulate greenhouse gases that
contribute to global warming.
People, 2007 WL 2726871 at *11.
Id. at *12.
This may be more than coincidence. The article, released Jan. 4 by
University of British Columbia law professor Shi-Ling Hsu, acknowledges the help and comments of two of the attorneys who filed the
Kivalina lawsuit weeks later. See Shi-Ling Hsu, A Realistic Evaluation of
Climate Change Litigation Through the Lens of a Hypothetical Lawsuit, 78
COLO L. REV. ________ (forthcoming).
Jonathan B. Shoebotham is a partner in the Houston office
of Thompson & Knight. His practice focuses on complex
toxic-tort and environmental litigation.
He can be reached at jonathan.shoebotham@tklaw.com.
© 2008 Thomson Reuters/West and ALM Properties, Inc.