Types of Climate Change Disputes
and Litigation in the USA
University of Insubria, Como, Italy
Jeffrey W. Stempel and Ann C. McGinley
William S. Boyd School of Law
University of Nevada, Las Vegas
A Short History of Climate
Change Litigation
Identifying the Problem
• 1950s – Modern scientists begin to recognize the
possibility that human activity generating heat
and carbon gas has affected Earth’s atmosphere
and climate (actually some scientific attention as
early as the 19th Century)
• But not much action and even less public
awareness
• 1976 Al Gore (while still a U.S. Senator from
Tennessee) has congressional hearings, supports
further and increased study
Government Action
• National Climate Program Act of 1978
• 1980 – Congress directs study by the Office of
Science and Technology Policy
• Global Climate Protection Act of 1987
• Intergovernmental Panel on Climate Change
(1990)
• Global Change Research Act of 1990
• UN Framework Convention on Climate Change
• Kyoto Protocol (1997)
Climate Change Consciousness
• 1980s – Increased scientific evidence that
industrial activity and the gases produced are
affecting atmospheric and climate change
• Picked up more in the news media
– Dominated by the term “Global Warming”
• 1990s – more scientific evidence and publicity
• Early 21st Century – continues
– “Climate Change” becomes the preferred term
Climate Change Consciousness
• But with increased climate change awareness
comes backlash
• Climate Change Skeptics (but few in the
scientific community)
• And outright Climate Change Denial
– Petrochemical companies lead the charge
– Accompanied by Extreme Right-Wing politicians
– And because this is the USA, some of these people
are in Congress rather than straightjackets
Climate Change Rogues Gallery
• The Koch Brothers (Charles and David)
• Senator James Inhofe (R-Oklahoma)
– Contends that climate change is the
“biggest hoax” ever
– June 2013: Oklahoma site of unusually
massive and deadly tornados
• Fox News
– Owned by Rupert Murdoch; Run by former
political consultant Roger Ailes; Viewed by
many as a Republican public relations tool by
many (but large number of viewers)
• Fundamentalist Christian religious
communities
– All is irrelevant for those waiting for the
rapture
Mug Shots From the Rogues Gallery
To be fair . . . .
• The academic community in the USA tends to be
left of the political community
• Universities and law schools have generally
supported stronger climate change efforts
• But some “moderates” or less conventional
thinkers in the academy
• Concern (that you will see in judicial decisions)
about whether the courts should address
problem or if problem should be addressed only
or primarily by legislative and executive branches
To be fair . . . Part II
• A few scholars in the USA think the climate
change problem is overstated
• And a few (e.g., J.B. Ruhl at Vanderbilt) suggest
that not all impact of climate change will be bad
for all people and regions. There will be some
“winners” in climate change as well as “losers.”
(The Political Economy of Climate Change
Winners, 97 MINN. L. REV. 206 (2012)).
– Arkansas dries up
– But Canada has a longer growing season
But Fairness and Tolerance of the
Conservative View Goes Only So Far
• In the USA, the majority of University and Law
School faculty views climate change as a serious
problem
• But a significant group is hesitant about what
courts and traditional litigation can do
• As to the scope of the problem, the left is right:
the problem is serious and USA has not taken
enough action
• Scientific community (a generally less left group
than the liberal arts or law community) is very
worried
Legal Scholarship and Climate Change
• Broke out in a big way during the 21st Century
• A new aspect of USA law – but uncertain as to
its direction in the academy or in the field
• An early article: David A. Grossman, Warming
to a Not-So-Radical Idea: Tort-Based Climate
Change Litigation, 28 COLUM. J. ENVTL. L. REV. 1
(2003)
Other Theoretical Roadmaps for
Climate Change Lawsuits
• Lindsay Leone, Putting the Heat on the Fossil
Fuel Industry: Using Products Liability in
Climate Change Litigation, 21 B.U. PUB. INT. L.J.
365 (2011)
• Gregory Munro, The Public Trust Doctrine and
the Montana Constitution as Legal Bases for
Climate Change Litigation in Montana, 73
MONT. L. REV. 123 (2012)
Legal Scholarship and Climate Change
• Grossman’s Template – still in progress
• Outlines a number of potential lawsuits by
climate change victims against defendants
whose actions have contributed to climate
change
• Discusses technical legal issues
Legal Scholarship and Climate Change
• Technical Legal Issues
–
–
–
–
–
Do Defendants owe a legal duty to victims?
Do victims have “standing” to sue?
Is a lawsuit the proper vehicle for assessing the claim?
What is the standard for liability?
Even if Defendants spew out greenhouse gases, can
this be shown to be a proximate cause of particular
harm to particular victims?
– What damages suffered by victims can be attributed
to defendant conduct?
Standing
• Required by Article III of U.S. Constitution
• Plaintiff must show:
– An Injury that is
– Concrete and particularized as well as
– Actual and imminent (not speculative or hypothetical)
• The injury is fairly traceable to defendant actions;
• The injury can probably be remedied by a
favorable court decision
Elements of Negligence Tort
• Duty of Care owed by Defendant to Plaintiff
• Breach of Duty by the Defendant
• That is the proximate (fairly traceable and
legally recognized) cause
• Of sufficiently provable injury to Plaintiff
• Hard to achieve in climate change litigation
– Demonstrating crop loss or flood caused by power
plant harder than showing defendant’s driving or
exploding Coke bottle hurt plaintiff
Causation
• Must show that defendant action is a causein-fact of harm and
• That it is a “proximate” cause the law will
recognize as not too attenuated or unfair in
imposing liability
A Causal Chain – “for want of a nail the
Kingdom was lost”
• Defendant companies engage in carbonproducing activity or goods
• Consumers use product (cars)to produce more
carbon
• These emissions cause a greenhouse effect
• Sea levels rise, permafrost melts
• Damage to air and property result
• That is foreseeable
• But this is also general: Can you say that a power
plant in Ohio causes harm in Vermont?
More on Legal Doctrine and Climate
Change Litigation
• Difficulty in showing damages leads to efforts
for injunctive relief – but this can cause more
justiciability problems
• Can courts order governments agencies or
regulate industries making carbon emissions?
• Is it a “political question?”
• Do federal statutes “pre-empt” or “displace”
state statutory or common law claims that
victims might otherwise have?
More on Legal Doctrine
• Are Climate Change Claims Tort Claims?
• If So, What Torts?
–
–
–
–
–
Nuisance? (state or federal common law?)
Public Trust?
Negligence?
Strict Liability?
Trespass?
• Or must the claims be grounded in a federal
statute?
– But if a federal statutory claim, must courts yield to
the administrative agency in charge of the statute?
Public Nuisance
• Grossman thought this tort claim most likely
to succeed in a lawsuit
• Elements are:
– A right common to the public
– Defendant’s unreasonable interference with
that public right
– Failure to take reasonable actions to avoid or
reduce the harm
Examples of Unreasonable Conduct
• Significant interference with public safety,
health, peace, comfort or convenience;
• Continuing conduct producing a long-term
bad effect of which Defendant is aware (or
should recognize) but does nothing; or
• Defendant conduct is illegal (in violation of
statute or regulation)
Another Legal Question: Is There
Insurance Coverage?
• The 20th Century expansion of Tort Law in the USA was
to a large degree made possible because of the
increasing presence of liability insurance held by
defendants.
• Before the advent of widespread automobile and
general liability insurance (which took place during
1920-1950), individual and small business defendants
lacked funds to pay claims
• Lawyers would not take cases to sue defendants that
could not pay
• But with insurance, the mid and later 20th Century saw
a big expansion of tort liability and litigation
Climate Change and Insurance
• If there is insurance, there will be more willingness of
victims/plaintiffs
– lawyers to bring climate change lawsuits. Lawyers seek a “deep
pocket” that can pay damages
– Insurance can provide this where defendant is not wealthy
• Even the early “test” “cutting edge” “new cause of action” or
experimental cases that have a high failure rate (at least initially)
• Example of asbestos:
– at first a high risk case brought by lawyers willing to take a risk. Years
without success until courts accepted such cases. Then favorable
precedent made it “easy” and an avalanche of lawsuits followed
• Similar example: Dalkon Shield
–
suits against the maker of the contraceptive device. Earlier failures
but perseverance led to victories and success.
Climate Change and Insurance
• To Soon To Tell – or a hopeless cause?
• The climate change lawsuits to date have sought
injunctive relief
• But most liability coverage is only for actions
seeking monetary damages from the defendant
(who hopefully has liability insurance)
• Until more damages lawsuits are brought, we
won’t know about insurance coverage
• A good case for coverage but also some good
arguments against it
Insurance Coverage for Climate
Change Claims
• Some early scholarly support
– Stempel, Insurance and Climate Change Litigation, Ch.
10 in BURNS & OSOFSKY, LITIGATING CLIMATE CHANGE (2009)
• But some of it from policyholder lawyers
– Malloy & Sylvester, Insurance Coverage for Global
Warming Liability Claims, 45 TORT TRIAL & INS. PRAC. L.J.
811 (2010)
– Paul, The Price of Emission: Will Liability Insurance
Cover Damages Resulting From Global Warming?, 19
LOY. CONSUMER L. REV. 468 (2007)
• And still plenty of insurer resistance
Too Early for a Climate Change
Scorecard?
• David Markell & J.B. Ruhl, An Empirical Assessment of
Climate Change in the Courts: A New Jurisprudence or
Business as Usual?, 64 FLA. L. REV. 15 (2012)(concluding
that it is “business as usual” which translates into only
modest impact from such lawsuits) – more on this after
we look at our major cases
• Hugh S. Wilkins, The Justiciability of Climate Change: A
Comparison of US and Canadian Approaches, 34
DALHOUSIE L.J. 529 (2011)(finding similar reaction of
Canadian courts)
• Concern that courts can only do so much about climate
change.
Massachusetts v. EPA
• Massachusetts and other states sue the
Environmental Protection Agency (EPA)?
• Why?
– To Force the EPA to issue regulations regarding
greenhouse gas emissions
• What is the EPA?
– An administrative agency of the national USA
government (the “federal” government)
Massachusetts v. EPA (con’t)
Backing Up a Step
• What is an Administrative Agency?
– Technically a part of the Executive Branch
– Agency heads report to the President
• But created by the legislature (Congress)
• Remember the organizational chart
• Legislative – Executive – Judicial
– Early debate was whether Congress could
“delegate” this much lawmaking and
enforcement power to the Executive
Branch
– Modern “Administrative State” accepts this
in USA and other industrial democracies
More Background on Massachusetts v.
EPA
• How did The EPA come into being?
– Created as part of the “Earth Day”
legislation of 1970
– Along with Clean Air Act, Clean Water Act
– Headed by an “Administrator” rather than a
cabinet secretary but still very important
More on Massachusetts v. EPA
• How can a state sue a part of the national
government?
– In the USA system – yes – subject to some constraints
that are less likely to affect private litigation
• What are some legal problems with
Massachusetts pursuing this action?
• Standing
– Does the plaintiff have a right to bring a lawsuit
against the defendant? (an injury)
• Justiciability
– Is the matter appropriate for judicial determination?
Standing
• There must be a real (and not a hypothetical
dispute) between the plaintiff and defendant
– In simple form, standing means the claim is
sufficiently tangible and that the plaintiff has a nonspeculative claim against the defendant
– And the harm must be immediate and concrete
– For example: I’m worried that Google will give my
private information to the government” used to be a
hypothetical, speculative claim.”
– But “Google did in fact share my private data with the
government” would seem to be a sufficiently concrete
claim
Standing
• But beginning in the 1970s, the U.S. Supreme
Court began applying a more involved concept of
standing that requires not only that the dispute
between the litigants be real but also that:
• The injury can be fairly traced to the defendant’s
action; and
• Winning the lawsuit will give a judicial remedy
that adequately redresses the harm suffered
• As we shall see, this appears to co-mingle
standing and justiciability
Justiciability
• The concept stems from the USA system of
separation of powers
– The idea is that the judiciary should be deciding cases
and not making policy like a legislature or executive.
– This is one of the reasons for the standing
requirements as well
• To be justiciable, a case must be one that can be
decided according to judicial methods with the
application of judicial remedies for the winner
– But modern challenges have often led to an expansion
of judicial remedies
Justiciability Concerns
• Avoiding Advisory Opinions
• Avoiding a decision that is speculative because the
dispute is not yet “ripe” for adjudication
– e.g., suing the EPA administrator because you think she is
likely to make a bad regulation in 2015
• But also refusing to decide a case where there is no
longer anything the court can do because the legal
aspect of the case is “moot”
• e.g., attacking the EPA imposition of a penalty where
the EPA subsequently waived the penalty
– But some courts would hear this case because it is capable
of being repeated
Justiciability
• Avoiding legislative lawmaking by the court
• “Political Questions” presented in a lawsuit
will not be entertained by USA courts
• A political question is one that the
Constitution has assigned to another branch
of the legislature
– Example: A court may declare a tax
unconstitutional if it is discriminatory – but it will
not determine the amount of a tax
Back to Masschusetts v. EPA
• Statute enacted by Congress instructs
EPA to regulate “pollutants.”
• EPA has taken the position that carbon
dioxide and other greenhouse gases are
not “pollutants” subject to agency
regulation
• Either because CO2 is not really a
polluter
• Or because if it is, it is already being
regulated by legislation concerning
automobile emissions
Massachusetts v. EPA
• Massachusetts claims that EPA failure to regulate
hurts the state and that this gives Massachusetts
“standing” to sue
• Does the Supreme Court agree?
• Yes – Massachusetts (and other states) have an
interest in protecting the state lands and the air –
an allegation that another (even a government
agency) is hurting the air, water and land creates
a concrete and adverse dispute that is not merely
hypothetical
Massachusetts v. EPA
• Because there is Standing, the Court can consider
and judge the issue of whether EPA is in violation
of the statute.
• By a 5-4 vote (as was the case on the issue of
standing), the Court finds EPA in violation
• The Statute is clear – EPA should regulate
pollutants
• The fact that there is other regulation over some
pollutants some of the time (e.g., automobile
tailpipe emissions) does not take this authority or
duty away)
Massachusetts v. EPA
• Carbon Dioxide is clearly a pollutant
• Sure, CO2 is a natural bi-product of breathing,
some natural activity
• So are other greenhouse gases (e.g., methane
– take a walk around a cow pasture and take a
deep breath to confirm)
• But natural or man-made, CO2 is a
greenhouse gas that is alleged to contribute to
adverse climate change
Massachusetts v. EPA
• Greenhouse cases are sufficiently “pollutants” that
they fall within the statutory command that EPA
examine and take regulatory action
• But the Court is not declaring exactly what regulatory
action should be taken by EPA
• Rather, EPA simply has to go to work and exercise its
decision-making authority
• Conceivably, EPA could decide that despite its
contribution to climate change, regulation CO2 is not in
the public interest because of administrative cost,
burdens on business, etc. – but EPA must at least
examine the situation
Massachusetts v. EPA
• The Court majority (Justice Stevens, joined by
Justices Kennedy, Souter, Ginsburg & Breyer)
• The dissenters (Chief Justice Roberts and Justices
Scalia, Thomas and Alito)
–
–
–
–
Disagreement over standing
Disagreement over interpretation of the statute
Disagreement over the role of the Agency
Dissenters find the case a political question; Decisions
of this type should be left to legislature or the
executive (including agencies operating within the
executive branch).
Massachusetts v. EPA -- Aftermath
• Case decided in 2007
– Near the end of the George W. Bush Presidency
• 2008 – Barrack Obama elected President
• 2009 – President Obama appoints Cabinet officials and
many agency heads – including a new EPA
Administrator
• The Obama EPA willingly does what the Bush EPA was
required to do by lawsuit
• Does this mean it was a political question after all?
• That should have been left to the Executive Branch?
Connecticut v. American Electric
Power
• At least the case starts with that name
• Connecticut and other states sue AEP and
many other utilities because defendants put
huge volumes of greenhouse gases into the
atmosphere, contributing to accelerated
adverse climate change
• Power plants, automobiles, and airplanes as
particularly substantial contributors to climate
change
Connecticut v. American Electric Power
• Case begins in the federal trial court in the
Southern District of New York (Manhattan)
• Defendants move to have the complaint
dismissed as not being justiciable on the
ground it presents a “political question”
• The trial court grants the motion and
dismisses the case
• Plaintiffs appeal
Connecticut v. American Electric Power
• The case is now heard by the United States Court of
Appeals for the Second Circuit (New York, Connecticut,
Vermont)
• Heard by a three-judge panel that includes Judges
Joseph MacLaughlin, Peter Hall and Sonia Sotomayor
• But before a decision can be announced, Judge
Sotomayor is nominated for the Supreme Court seat
held by retiring Justice David Souter.
• The remaining two 2d Circuit Judges issue an opinion
that overturns the lower court’s dismissal of the case
American Electric Power v. Connecticut
• The Defendants seek review before the U.S.
Supreme Court, which is granted.
• The name of the case then becomes AEP v.
Connecticut because AEP is the “petitioner,”
whose petition for certiorari was granted.
Connecticut, although still the plaintiff in the
case at trial, is the “respondent” to the
petition for review.
American Electric Power v. Connecticut
• The Defendants argue that Connecticut does not have
standing
• The Supreme Court affirms the 2d Circuit holding that
standing exists and does so by an “equally divided
Court”
• This means that four justices thought there was
standing and four did not. The Court has 9 members
– but one of them is Justice Sotomayor, who is disqualified
because she participated in the case when it was before
the Court of Appeals
– that’s why there are only 8 Justices voting on the standing
question
American Electric Power v. Connecticut
• Because of the affirmance on standing by an equally
divided court, the four Justices who do not think
Connecticut has standing do not bother to dissent
• This makes AEP v. Connecticut look less controversial
than is actually the case
• The Court remains deeply divided on the standing
question
• But if Justice Sotomayor had participated, she would
have probably voted that the state could sue, leading
to the same 5-4 result on the issue that occurred in
Massachusetts v. EPA
American Electric Power v. Connecticut
• Once past standing, the Court considers
whether the state claims against the utilities
based on federal common law can proceed
• Here the Court is united – and united against
letting the lawsuit proceed
• The claim is premised on “federal common
law” the law created by judicial decisions
regarding national matters
Federal Common Law
• A bit of a rarity
• Most federal law cases are based on statutes
enacted by the national government (or
because of legal rights created by treaties or
the Constitution)
• (Remember: cases also may be in the federal
court (and remember, “federal” means
“national”) because the case involves citizens
of different states
Federal Common Law
• Where there is a statute that expressly
governs an area of law (express preemption)
or that by implication occupies a particular
field of law (field preemption), the statute
controls and a federal common law claim
cannot be brought.
• The Court finds that the Clean Air Act
preempts or displaces federal common law
American Electric Power v.
Connecticut
• The Clean Air Act sets forth rules about air quality
• The Act also creates the EPA and assigns
enforcement of the Act to the EPA
• Because of this, federal common law is displaced
• Because Connecticut sued based on the federal
common law of nuisance, the case cannot
proceed – because it is based on a displaced body
of law – displaced legislation authorizing EPA to
regulate CO2 emissions (air pollution)
American Electric Power v. Connecticut
• Connecticut cannot continue suing on the
basis of federal common law
• But perhaps a state statute would support
relief -- or perhaps state common law
• The case is “remanded” (sent back to the trial
court) for further proceedings.
• Can Connecticut bring a state law claim?
• Depends on whether federal/national statute
“pre-empts” state law in this area
The Nuisance Cause of Action
• The federal common law claim Connecticut
wanted to make was one providing relief if the
defendants had caused a “nuisance.”
• What is the tort concept of “public nuisance”?
– Unreasonable Interference with right common to
the public
– Without reasonable efforts to avoid, reduce, or
mitigate the injury
American Electric Power v. Connecticut
• Regarding federal law, can Connecticut sue for
relief using the substance of the Clean Air Act
rather than federal common law? Why or why
not?
• The law says no – the Act gives the EPA the
power to enforce clean air standards and does
not permit private lawsuits such as the one by
Connecticut (But under Mass. v. EPA the state
can sue for a rulemaking)
AEP v. Connecticut & Justiciability
• The Court also finds Justiciability problems –
why?
• The issues of pollution and climate change are
complex
• Better suited to examination by an “expert”
administrative agency
• Ill-suited to conventional adjudication by a court
• Need for experts, need for decisionmaker
expertise (judges and regulators are different)
Village of Kivalina v.
ExxonMobil
• Review from Torts class description of
Kivalina v. Exxon lawsuit
• Small Alaskan village on a small island
• Threatened by rising seas
• Kivalina sues the major energy
companies on the theory that
defendants’ production of large
amounts of greenhouse gas for decades
fueled the rise in sea level that
threatens the survival of Kivalina
Village of Kivalina v. ExxonMobil
• Village seeks monetary damages – payment
for the loss of land and impending loss of the
Village so that it (and the people) can be
relocated
• Theory of damage is that climate change
made for reduced ice, which was the historical
wall of protection for the shoreline around
Kivalina
A Reminder on Remedies: Damages as
Compared to Injunctive Relief
• Recall injunctive or “equitable” relief and how it
differs from “legal” relief (a suit for monetary
damages)
• Damages – “simple” payment of money
– But may be hard to calculate the correct amount
• Injunctive relief: seeking to command the
defendant to do something (e.g., lower emissions
from consumption of products) or refrain from
doing something (producing products that
contribute to climate change)
Village of Kivalina v. ExxonMobil
• Trial court dismissed the case because:
– No Standing to sue for Kivalina
– Case presents a nonjusticiable political question
• Appeal to the U.S. Court of Appeals for the Ninth
Circuit
• Largest in the USA in terms of population, caseload
• California, Arizona, Nevada, Oregon, Washington,
Idaho, Montana, Alaska, Hawaii, Guam, Mariana
Islands
• Heard by a three-judge panel
Kivalina v. ExxonMobil Panel
• Judge Sidney Thomas authors the opinion (from
Montana; Appointed by President Bill Clinton; reputed
to be one of the “finalists” when President Obama
selected Justices Sotomayor and Kagan)
• Joined by Judge Richard Clifton (from Hawaii;
appointed by President George H.W. Bush and
generally conservative, but not as conservative as most
judges appointed by President George W. Bush)
• Judge Philip Pro (a District Judge from Las Vegas;
Appointed by President Ronald Reagan). Although a
trial court judge, Judge Pro is sitting with the panel “by
designation.”
Village of Kivalina v. ExxonMobil
• Kivalina claim is based on federal common law
• Similar to Connecticut v. AEP
• Ninth Circuit therefore finds that federal
common law claim for relief cannot be made
• Federal common law is displaced by the Clean
Air Act
• If Kivalina wants relief, it will need to enlist the
help of the EPA
Village of Kivalina v. ExxonMobil
• “Our conclusion obviously does not aid Kivalina, which
itself is being displaced by the rising sea. But the
solution to Kivalina’s dire circumstance must rest in the
hands of the legislative and executive branches of our
government, not the federal common law.” 696 F.3d at
858.
• Doesn’t matter that this is a case for damages, not
injunction
• Opinion does not address the issue of standing –
because the issue of displacement of common law by
statute precludes the case from going forward even if
the Village has standing.
Village of Kivalina v. ExxonMobil
• Judge Pro concurs
• What is a “concurrence”
• Judge Pro concurs so that he can make his own
comments on
– Standing: he thinks Kivalina lacks standing -- but is
that correct if Massachusetts had standing in its case
against the EPA?
– Justiciability: If Kivalina or similar litigants have
standing, the fact that they cannot get injunctive relief
under federal common law does not mean they
cannot sue for monetary relief (presumably under
state law as well as federal common law).
More on the Pro Concurrence
• Judge Pro finds the cases in some conflict
• But some, particularly Silkwood v. Kerr-McGee,
suggest that an injured party may pursue a
lawsuit for damages even if there could not be
a lawsuit for an injunction by anyone other
than the responsible government agency
Interesting Precedent
in the Pro Concurrence
• The Karen Silkwood saga
• Union activist – accused Kerr-McGee,
a big energy company, of unsafe
practices at a uranium plant in
Oklahoma
• Silkwood as a whistleblower
• But she dies in an auto accident on
the way to meeting a reporter
• Suspicions abound -- but never any
prosecution
Image: hazardous waste / thetruthabout / flickr.com
http://www.flickr.com/photos/thetruthabout/27457
02704/
Silkwood
More on the Silkwood Case
• Silkwood’s estate did pursue a tort claim after
her death
• But the tort claim was not for wrongful death
due to the auto accident or any alleged
murder
• Instead, the claim was that before she died,
Silkwood was contaminated by radiation
because of unsafe practices at the Kerr-McGee
facility
More on Silkwood
• At trial, Silkwood (represented by famous plaintiff’s personal injury
lawyer Gerry Spence) wins a big verdict ($500,000 compensatory
damages and $10 million punitive damages)
• On appeal, the damages are set aside on the theory that the
pervasiveness of nuclear facility regulation by statute and the
Nuclear Regulatory Commission precludes a private lawsuit for
damages (pre-emption of state tort law by federal law)
• The U.S. Supreme Court reverses and permits the verdict to stand:
federal atomic energy regulation does not displace Oklahoma tort
law. (Georgetown Law Professor Michael Gottesman argued for
Silkwood)
• As discussed by Judge Pro, Silkwood is something of a high water
mark in permitting private lawsuits despite a pervasive (if perhaps
ineffective) regulatory scheme
– Would the Current Supreme Court reach the same result?
More on Silkwood
•
•
•
•
•
•
And of course, a story this good needs a movie
Silkwood (1988)
Starring Meryl Streep, Cher
Directed by Mike Nichols
Written by the late Nora Ephron
Focuses on Silkwood as a whistleblower and
possibly a victim of murder by her corporate
enemies – skips the civil lawsuit and preemption
questions.
Other Climate
Change Cases
• Comer v. Murphy Oil
• A long saga (begins in 2005)
• Plaintiffs allege that greenhouse gas producers
created climate change that increased the
force of Hurricane Katrina’s destruction
• Federal District Court (trial court) in
Mississippi dismisses the case: lack of
standing and non-justiciable political question
Katrina
Katrina’s destruction
Comer v. Murphy Oil (cont’)
• Plaintiffs appeal – a panel of the Fifth Circuit
reverses the trial court
• Finds standing to bring claims under theories
of nuisance, trespass and negligence and that
the claims are justiciable
• But before the case can go back for trial,
unusual developments
Comer v. Murphy Oil (con’t)
• Fifth Circuit votes to rehear the panel opinion “en
banc” – meaning before the entire Court of
Appeals
• But then several judges “recuse” (disqualify)
themselves because of owning stock in one or
more of the energy company defendants
• That leaves too few non-recused judges for a
quorum
• But the grant of rehearing vacated or erased the
panel opinion
• Which means the trial court dismissal stands
An Epilogue on Comer
• The plaintiffs re-file the lawsuit that was
dismissed because of the crazy circumstances of
the rehearing and recusal
• For the new lawsuit, the trial court finds it barred
by the doctrine of res judicata or claim preclusion
– the rule that once a case has been decided on
the merits (and dismissal can count as decision),
the case may not be brought again
• Fifth Circuit affirms dismissal of this second case
in 2013
Is Comer Justice?
But Another, More Conventional
Hurricane Katrina Case is Successful
• In Turner v. Murphy Oil, plaintiff homeowners
and businesses injured by oil spill in Louisiana
sue
• Claim is that defendant negligence in failing to
properly secure above ground oil storage
tanks caused injury
• The tanks did not withstand Hurricane Katrina
• Settles for $330 million
Other Climate Change Cases
• California v. General Motors
• State sues GM and other auto
makers, alleging that poor gas
mileage and excess carbon emissions
unnecessarily made climate change
more severe, causing ice melt and
attendant bad effects in California
• Suit seeks damages to compensate
for what State must do in response to
these climate change problems
• Federal District Court dismisses –
finds the case non-justiciable
California v. General Motors
• Trial court sees case as presenting political
question that cannot be handled by a court
• Focuses on “the impossibility of deciding [the
case] without an initial policy determination of a
kind clearly for nonjudicial discretion” – i.e.,
legislative or regulatory sollution
• Perhaps surprisingly, finds support for its decision
in Massachusetts v. EPA – because the regulatory
agency is being forced to follow the statutory
plan to regulate pollutants
California v. General Motors
• “Were judges to resolve political questions, there
would be no check on their resolutions because the
Judiciary is not accountable to any other branch or to
the People.”
• Whoa – are courts really that powerful?
• Remember, a trial court adjudication is appealable, and
• What about:
–
–
–
–
legislative change in the law to change a court result?
Impeachment of judges?
Legislative reduction of the court budget?
Public opinion?
Other Climate Change Cases
• Butler v. Brewer (Ariz. Ct. App. 2013)
• Plaintiff, a minor, sues the Governor of
Arizona and other officials
• Asserts the “Public Trust Doctrine”
• A body of law that permits judicial action to
protect property of the public from
mismanagement by government
Butler v. Brewer
• Trial court dismisses the claim
• Arizona Court of Appeals affirms dismissal
– No standing because Plaintiff does not allege sufficiently direct
and concrete harm to her personally
– State statues and regulations displace state common law
– And the state statutes and regulations do not support the relief
Plaintiff seeks
• Also finds the case presents a political question and that it
is not a court’s “job” to “declare policy for the State” and
that Butler should lobby the legislature.
– But finds that in the right case, the Public Trust doctrine can
apply to air as well as land and water (but one dissenting judge
would not even go that far)
Reflecting on Litigation to Date
• Litigation has been only a moderate success
• Forcing the EPA or other regulatory agencies
to at least address the problem
• But if the agency action is weak (rather than
completely non-existent), the courts appear
not to want to become involved or secondguess the regulators
• Pre-emption and Political Question doctrines
limit judicial relief to date
Future Climate Change Litigation: Still
Open Questions
• Use of federal common law in situations without
displacement by national statutes
• Use of state statutory remedies where state law not
pre-empted
• Use of state common law of torts if no pre-emption
• Particularly pursuit of an action for damages
• Which may operate more like a “regular” lawsuit
• Courts then less concerned about judicial activism and
intrusion on the more political branches
And There’s More
• When there is a lawsuit in the USA, both parties
consider whether insurance coverage exists
• Defendants want insurance to apply to hire
lawyers for defense and to pay claims
• Plaintiffs want insurance to ensure compensation
• Insurers would prefer not to pay and keep the
premiums and interest earned on their
investments
Insurance Coverage Litigation
• Because insurance is such an important factor
affecting USA law and legal outcomes, there will
often be lawsuits in which a court is asked to
determine the meaning of an insurance policy
and whether it applies to provide funding and
defense costs.
• Question is whether the insurance “covers” the
claim or loss in question
• Court determines the meaning of the insurance
policy – but juries often involved in making
factual determinations
Some Early Coverage Litigation About
Climate Change Lawsuits
• AES Corp. v. Steadfast Ins. Co. (Virginia
Supreme Court 2012)
• Steadfast is the liability insurer for one of the
defendants sued by the Village of Kivalina
• Steadfast contends that it does not need to
defend the case or pay any claims because the
defendant’s harm to Kivalina was not an
“accident” as required by the policy.
AES Corp. v. Steadfast Ins. Co.
• The Virginia Supreme Court agrees with the
insurer (Why Virginia?)
• A terrible decision – both in terms of
reasoning and practical impact
• The Court mistakenly equates a policyholder’s
intentional activity (e.g., running a power
plant, manufacturing engines) with planned
results or an intent to injure
AES Corp. v. Steadfast Ins. Co.
• This confusion/conflation about intentional
conduct and accidents is a common problem
for USA courts
– Where many judges become judges without any
training or experience with insurance
• Many USA judges are former prosecutors: extensive
knowledge of criminal law but sometimes weak
knowledge of civil law
– Or the judge previously worked for insurers in
private practice
Judicial Misunderstanding of Fortuity
• The Kivalina defendants may have intended to
make polluting things or to run businesses
that emitted greenhouse gases
• But they most likely did not intend to raise the
ocean levels
– Or to erode the shoreline
– Or to flood the Village or force it to relocate
The Virginia Decision: At Odds with the
Purpose of Liability Insurance
• Policyholders purchase liability insurance to protect
them from (mostly tort) lawsuits, by both defending
them and paying claims arising from their ordinary
activities that may cause injury to others
• Most claims are made against a policyholder when
something unexpectedly goes wrong, often because
the policyholder (or its employees acts negligently)
• If there were no injuries or negligence, there would be
no need to buy liability insurance
• Insurance becomes worthless if a court takes it away
under the theory that injuries arising out of company
activity are not “accidents”
Cinergy Corp. v. Associated Electric &
Gas Insurance Services
• Indiana Court of Appeals (2007)
• Here, the issue is whether liability insurance
provides coverage to the policyholder when the
EPA sues to require the Cinergy Corp. to do a
better job controlling pollution from its facilities.
• Court finds that because liability insurance only
applies to claims for monetary “damages” there is
no coverage for a government action seeking to
require particular conduct