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Common Sense Kiss of Death for Climate Change Lawsuits?

The decision by the United States Court of Appeals for the Ninth Circuit in Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. LEXIS 19870 (9th Cir. Sept. 21, 2012) if left standing has the practical effect of ending the way environmental law claims are decided.  In a unanimous decision, the Appeals Court dismissed the case against XOM and other oil, energy and utilities companies alleging that their greenhouse gas emissions threaten the defendants’ property and other rights.  Had the court upheld the lawsuit it would have forced the energy companies to own the burden of proving that their business operations do not cause global warming—an impossible burden that would have subjected them to endless nuisance lawsuits.

The original lawsuit was dismissed by the Federal District court in 2009 as essentially a political lawsuit.  The plaintiffs appealed and the Ninth Circuit took the case. Meanwhile, the U.S. Supreme Court decision in AEP v. Connecticut, 131 S. Ct. 2527, 2535, 180 L. Ed. 2d 435 (2011) , where the legal issue was the same question as in Kivalina of is there a federal common law of public nuisance. Apparently the answer is that there is no federal general common law, but the courts over time have asserted the power to assume there is under a legal principle called “statutory interstices” and have used it to fashion remedies to fit the facts.  The problem with this judicial activism is there is a federal statute that says that the federal common law has been displaced — a concept similar to preemption.

Judge Sidney Thomas, writing for the Ninth Circuit panel in Kivalina, said that the Supreme Court had decided the matter in the AEP case. “We need not engage in complex issue and fact-specific analysis in this case, because we have direct Supreme Court guidance that has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.  Further Judge Thomas said that the 1981 decision by the U.S. Supreme Court in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 4 (1981) found  that “under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.”  The practical result is that there is no displacement when there is no federal statutory remedy for monetary damages as a result of climate change.

The trial bar is left gasping for air, but the marketplace is spared from endless litigation over climate change. The principal legal theory behind climate change litigation and the endless quest for monetary damages has been debunked by the most arguably liberal Appellate Court in the land and worse, the Kivalina decision appears to further strengthen the preemption defense for defendants in all environmental common law actions, under both federal and state law. This is a victory for common sense worth savoring.

Gary Hunt's picture

Thank Gary for the Post!

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John Miller's picture
John Miller on Oct 29, 2012 10:27 pm GMT

Gary, I'm glad to see the Courts still believe in the fundamental principal of this country that you are innocent until proven guilty.  The Supreme Court has already bypassed Congress (Mass. vs. EPA 2007) when they found that carbon dioxide was a pollutant under the CAA, which was not included on the list of hazardous air pollutants under any of the many CAA amendments passed since 1970.

jan Freed's picture
jan Freed on Oct 30, 2012 1:08 pm GMT

It is indisputable (at the level of the certainty from DNA matches) that climate change exists and derives from carbon emissions, and more than beyond reasonable doubt that this change causes disasters that effect millions of people.  In 2000 the World Health Organization estimated 130,000 premature deaths/yr due to climate change.  It must be far beyond that now. And property damage? and effects of agriculture? with record breaking disasters year by year?

Of course, Exxon gets a pass, as does Shell, the Koch brothers, etc. from our legal system.  I am an environmentalist (former high school teacher), but I can see the logic of that.


Then again, so do all the people who fly, drive, or use coal based electricity.   We are also complicit, I suppose.

I would like to see justice done, but the most effective recourse would be to set a fee on all carbon sources (returned in full to taxpayers) that would "bill" companies for the damage done. These costs are termed externalities. Fossil fuels have had a free ride for harming our citizens. No more!


For example, coal's "externalities" are hundreds of billions/year, estimated by a study at Harvard School of Medicine at $.18/kwh.

This fee would level the playing field for wind and solar. More details from the Citizens Climate Lobby.

Gary Hunt's picture
Gary Hunt on Oct 30, 2012 2:54 pm GMT

Jfreed27:


There is a lot of merit to considering a carbon tax, but the devil has always been in the details. Personally, I favor ending all energy subsidies and force every fuel and every technology to compete in the market for a place at the table based upon its price and merits.  The markets are much better allocators of capital and arbiters of value than government.

Frankly, your comments are a good example of why we have yet found a formula that works.  You said: "Fossil fuels have had a free ride for harming our citizens.  No more."  Your words betray your biases.  This has become the undoing of the entire climate change project. The desire for a carbon tax has little to do with "justice" and everything to do with a desire to subvert the markets to impose a socially engineered regime of favored technologies and politically correct policies.

HEADLINE:  This has not worked out so well so far!

As to issues of "externalities" most of these discussions are excuses to jury rig the cost comparisons to again benefit one favored technology over another ill-favored one.

Then there is a small matter of "indisputability" you first mentioned.  By now surely you realize the "inconvenient truth" that the controversy, revelations and debate that has surrounded this issue has resulted in only one indisputable fact---politics were more important than science----so the indisputable turned into the unbelievable.

jan Freed's picture
jan Freed on Oct 30, 2012 3:33 pm GMT

You say, You said: "Fossil fuels have had a free ride for harming our citizens.  No more."  Your words betray your biases."

Any fair analysis would take into account the "externalities".  Taxpayers do pay for them, so it is an additional "subsidy" for fossil fuels. It is not bias to consider these costs, but part of any smart policy.

Look up the studies.  For example, Physicians for Social Responsibility estimates 30,000 premature deaths, just from coal pollution, let alone all fossil fuels' culpability in climate change. To simply and cynically smear the research as bias, is itself bias.

And Al Gore didn't melt the Arctic and the glaciers, acidify the oceans, increase the frequency and severity of extreme weather.  Where do you start??

Is it possilbe that he may be onto something? How screwed do we need to be to wake up?


And speaking of bias: Do you deny that fossil fuel companies have poured millions into the denial machine? Such as the Heartland Think Tank (which I call the Heartless Stink Tank) Do you see bias there, or not?

Patrick Kearney's picture
Patrick Kearney on Nov 4, 2012 7:39 pm GMT

Insurance Companies are the key to Climate Change Liabilty
Patrick Kearn ptrkearn@gmail.com

to ThinkProgress, letters
Letter to the Editor
 
Climate Change Liability Suits are the key to solving Climate Change. Insurance companies would recoup their storm damage losses if they were not also insuring Big Oils Accidental Policies. Big Oils knowledge of Climate Change voids accidental product liability coverage opening the door for successful litigation. Big Oils funding of the Climate Change Denial Industry proves malicious intent. Once insurance companies are not on the hook for claims and product liability because their clients actions are proven deliberate , they will pave the way for all Americans to litigate for a multitude of damages. The key is providing insurance companies the evidence required to separate accident coverage from deliberate acts against man kind.
Insurance companies are covering Big Oil for accidents not deliberate acts. Deliberate acts are not covered and the second they can prove this they will sue to recoup storm damage losses.
Could it be this simple ?
The recent cases involving relocation of Alaskan Natives suggest that insurance companies were bound to protect Big Oil only by the accidental clause in the policies. While the cases were dismissed because Big Oils liability could not be directly tied or quantified to the oceans rise, the cases may have moved forward if they were no longer protected under the accidental clause in their products liability.
It appears to me that freeing the insurance companies from this accidental product liability clause will allow public suits to move forward exempting insurance companies from Big Oils liability. Insurance companies themselves can then sue to recoup their storm damage claims without essentially suing themselves.
If this is true we will soon see the largest advancement for the fight against Climate Change with the American Insurance Industry leading the charge.
Every American is paying higher premiums and Big Oils passing its liability on to the Tax Payers and the American Insurance Industry, while reaping annual world record profits.
While litigation in the near future may prove there is a definite product liability attached to a product that releases C02, that is not the liability case I see for today.
 
Today there is a clear case to pursue Big Oils direct liability for the damages caused by their Cover Up, Disinformation and the establishment and funding of of an entire new industry of Global Warming Denial. Due to the length of time that they have funded the Denial Industry, years of opportunities to reverse or impede Global Warming have been blocked.
Without this Denial Industry legislation and mitigation efforts could have stopped the years of environmental devastations that have destroyed American Communities from Coast to Coast..
The one fact that is certain is the severity of the storms would have been reduced if not for the interference of the Global Warming Denial Industry.
While Americans digest the loss of Human Life, $50 Billion Dollar Cost and the human suffering caused by Hurricane Sandy, the Oil Industry reports another record breaking $50 Billion Dollar Earnings.
America is paying a high price for an industry that has shown no respect for the citizens of this country. Once all Americans realize the betrayal,and the effects Big Oils Global Warming Denial Industry has had on our environment,our political system and a trusting population, the Class Action Law Suits by American Citizens will never stop.
Let me emphasize its not the burning of fossil fuels that has Big Oil in the target of liability, its the diabolical cover up. This plan has required keeping Americans divided on the Global Warming Issue so Big Oil has successfully politicized the issue to keep Americans divided.
Unfortunately for Big Oil during storm events that devastate our neighborhoods we are not Democrats or Republicans, we are all Americans helping each other survive weather events that are increasing in frequency and severity. While theres no Atheist in Fox Holes there also little concern for party affiliation when we are both clinging to the same log in a flood.
It will not take to many more storms to align all Americans into asking what the hell is going on ? The American Public has been misinformed for 20 years by well funded Think Tanks, Advertising and Front Foundations , all on the Global Warming Denial Payroll. This is the largest conspiracy of our lifetimes that has deliberately become so politicized its been allowed to be removed from the Scientist that we trust to put a man on the moon and handed to Politicians we would not trust with our car keys.
 The U.S. Military, NASA, NOAA and the entire American Federation of Scientist all say our current weather events are increased in severity and frequency by Global Warming. The American Public has successfully been fooled by allowing the Scientist to be removed from the issue and allowing it to be controlled by talk radio.
If the same American Scientific Institutions reported a meteor the size of Manhattan was about to destroy the earth in 50 days , all ears would be glued to their every word.
Because the same Scientist have said destruction of the Earth has taken 50 years we all thought we had time. Times Up ! We do not have to wait until we are all floating down a creek without a paddle. All future generations will hold those responsible in the highest regard and I hope that doesn't mean hanging from the last trees left, but if we allow the planet to be destroyed they have every right.
I am a hard core American Capitalist and believe we all have the right to prosper as long as its not at anothers expense. Unfortunately American Oil Companies have spent Billions into swaying public opinion against the Science of Global Warming. They have actually held our political system hostage over the past 4 years by funding elections against candidates who will not play ball with them. Show me one candidate who stands against Global Warming and I'll show you a well funded opposition even in some local elections..
They are sparing no expense at keeping the American Public divided through our political system because its the foundation of Global Warming Denial.
Its only a matter of time or destruction before Americans realize Science should have been left to the Scientist and we are paying a severe and maybe irreversible toll for the delay caused by the Global Warming Denial Industry and its beneficiaries.
Those who have profited from this industry will not escape accountability. Today it may be only from our fellow Americans who have lost everything but tomorrow it will certainly be from the entire planet and generations to come. Thats a hell of a liability to have just to maintain a political ideology with no Scientific or factual basis. But what the hell you have a right to vote your political ideology, right ?
 What you don't have is the right to risk the planet and a home for future generations by ignoring Scientific Facts at the extreme expense to everyone. In the not so distant future The Trial Attorneys will devour anyone who has profited by Global Warming Denial.If we don't have the right to spread second hand smoke we certainly do not have the right to an ideology that destroys the Earths Climate . Those with the self centered arrogance that believe they do have a right to risk the planet may receive all the wrath God wants to release coming to them. The liability Cases are just beginning but there is already projections that generations to come may litigate for reparations from the descendants of those who have benefited.
 Class Action Settlement Projections to American Citizens exceed the total wealth of the Oil Industry leaving liquidation and reassignment of ownership to plaintiffs a future possibility. Now do you see why they had to keep Americans divided ? Because if we ever got together on the evidence of the Global Warming Denial Industry, they would be done for overnight and we would all wake up Stock Owners, Jed Clampets.
Our Politicians moral obligation to protect us has been hijacked and blinded by Big Oils unlimited cash. It is up to the the American Public to force our politicians to listen to the ever growing population of victims from Storm Events. With minimal research you will verify the amount of money spent on Global Warming Denial and realize it has grown into a massive industry.
If you keep your head in the sand on this issue you will eventually be covered by a Storm Surge, and rightfully so. The Economy may limp along but it will repair. Healthcare, Gay Marriage and Abortion will be the last concern on your mind when your roofs being ripped off.
Man Kinds existence should be in question when you have Hurricanes showing up annually to the date. We do not have the right to risk our children's  futures based on a political ideology that is clearly in total conflict with scientific evidence and what we see with our own eyes.
Its time you see what politicians are benefiting from Global Warming Denial and hold them accountable.

Brian Morrissey's picture
Brian Morrissey on Jan 22, 2013 5:18 pm GMT

There may be bias in Patrick's initial comment, but that doesn't mean he is wrong.  

Eliminate the qualitative judgment value on fossil fuel as it relates to global warming - and to public health and other impacts for that matter - and simply quantify it.  And I am QUITE sure the property insurance and health insurance providers will be happy do so (in fact it's being done right now - for example we already know that transportation-related pollution is blamed for around $90 billion in annual heathcare costs, so then figure the cost of the public's burden from that number from existing Merdicare/Medicaid percentages, certainly the property coverage providers are aware of their cost increases due to climate change), for the purposes of indexing this value to a tax that is levied on producers.  

Put the entire cost of using fossil fuel in the upfront price.  Suddenly the effects of using fossil fuels will directly influence comsumer choice, and non-polluting sources will be able compete on a level field, as fossil fuel producers will no longer benefit from externalizing the long-term costs of their product on to the taxpayers.

jan Freed's picture
jan Freed on Jan 22, 2013 6:32 pm GMT

You don't seem to understand how a carbon fee (and rebate) would work.  All carbon sources would be levied a fee to compensate for their externalities (as measured by our top faculties at our top universities).  Calling all those studies "bias" is simply a debating trick, called "poisoning the well", unless you provide evidence.

What other industry gets to pollute for free?

The fees would be rebated as (Congress chooses) either a. 100% returns to taxpayers, or b. reducing the deficit or c. supporting research into renewable energy. Or any combination of these.


When taxpayers receive the rebate, they choose their energy sources, their cars, their forms of efficiency, etc.  The shift to low carbon energy might well result.  The free market at its best.  Hosannah!

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