So Sorry Warmist: Global Warming Litigation Goes Cold

Within a matter of just a few days, the federal courts put an end to climate change litigation, including one case that had originated in 2005 in the wake of Hurricane Katrina.
Comer II
n May, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of Comer v. Murphy Oil USA, Inc., No. 12-60291 (5th Cir. May 14, 2013) (Comer II), the plaintiffs' second attempt to recover damages from certain energy and chemical companies on a theory that their emissions of greenhouse gases contributed to climate change and caused Hurricane Katrina to be more damaging to the Mississippi Gulf Coast than it otherwise might have been. The Fifth Circuit concluded that plaintiffs' claims, adjudicated to a final judgment in an earlier action filed just weeks after Hurricane Katrina struck, were barred by res judicata.
In filing Comer II, plaintiffs sought to take advantage of a procedural oddity that occurred during the appeal of the first action, Comer v. Murphy Oil USA, Inc., No. 05-436 (S.D. Miss.), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010),mandamus denied sub nom. In re Comer, 131 S. Ct. 902 (2011) ("Comer I"). InComer I, the district court dismissed plaintiffs' claims with prejudice, concluding that they lacked Article III standing to sue and that their claims were nonjusticiable under the political question doctrine. A panel of the Fifth Circuit reversed in part, but a majority of the court's active and non-recused judges voted to grant the defendants' petition for rehearing en banc. Pursuant to Local Rule, the panel's opinion was vacated. After briefing on rehearing, but before the court could rule, an additional recusal left the court without a quorum. The court concluded that the only act it was empowered to undertake was dismissal of the appeal. As the panel opinion had been vacated and no mandate issued, the district court's final judgment dismissing the plaintiffs' action remained intact. Rather than seek certiorari from the Supreme Court, the plaintiffs filed only a petition for writ of mandamus, which the Supreme Court denied.
The same plaintiffs filed a new complaint in the same district court in 2011, alleging many of the same claims against the same defendants (plus other companies that had been the subject of the plaintiffs' failed attempt to file a Fourth Amended Complaint in Comer I). The plaintiffs affirmatively acknowledged that Comer II presented causes of action that were "filed originally" in 2005 in Comer I. The district court again dismissed the plaintiffs' action with prejudice, stating as grounds for dismissal res judicata, collateral estoppel, running of limitations, lack of Article III standing, plaintiffs' inability to state legal causation, displacement of any federal common law claim by the Clean Air Act, and nonjusticiability under the political question doctrine.
In its opinion affirming dismissal, the Fifth Circuit concluded that it need not go beyond application of the doctrine of res judicata. The court cited a long line of binding precedents recognizing that res judicata does not depend on whether the prior judgment was correct, nor does there exist an equitable exception to application of res judicata that might, somehow, grant the plaintiffs relief from the recusal/lack of quorum-based dismissal of their Comer I appeal. The district court's final judgment in Comer I was on the merits and thus res judicata (the doctrine applies to jurisdictional determinations) and entitled to full faith and credit unless and until reversed on appeal, which never occurred. The district court's judgment remained undisturbed throughout the Comer I appellate proceedings, and thus Comer II was barred by res judicata.
The Comer II plaintiffs did not seek rehearing in the time allotted by the appellate rules, and the Fifth Circuit's mandate issued on June 4, 2013. While plaintiffs have time to seek certiorari from the Supreme Court, it is highly unlikely the plaintiffs would proceed with a petition, and even more unlikely that a petition would garner any traction. After nearly 8 years, this litigation appears to be over.
Native Village of Kivalina
Less than a week after the Fifth Circuit issued its opinion in Comer II, the Supreme Court issued an order that may have sealed the fate of climate change litigation. The Court denied plaintiffs' petition for certiorari in Native Village of Kivalina v. Exxon Mobil Corp., No. 12-1072 (U.S. May 20, 2013), leaving intact a Ninth Circuit opinion that unanimously affirmed dismissal of an action brought by plaintiffs who sought $400 million in damages to relocate their village from land they claimed to be eroding due to the effects of global climate change. Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490 (9th Cir. Sep. 21, 2012).
In 2008, the self-described "governing bodies" of an Alaska Native village brought suit in the United States District Court for the Northern District of California against select oil, coal, and utility companies. Asserting a theory of federal common law nuisance, plaintiffs claimed that defendants' historic emissions of significant quantities of greenhouse gases--in combination with others' emissions of an unspecified period of time--contributed to climate change that resulted in the melting of Arctic Sea ice that had protected their village from winds and storm surge. Without the protection of the sea ice, the land on which their village sat was eroding, allegedly necessitating relocation of the community at defendants' expense.
The district court granted the defendants' motions to dismiss, holding that plaintiffs lacked Article III standing to sue (they could not demonstrate that their claimed injury was fairly traceable to the claimed conduct of these defendants) and, alternatively, that plaintiffs' claims were nonjusticiable under the political question doctrine.
A unanimous panel of the Ninth Circuit affirmed, but on grounds different than those applied by the district court. The Ninth Circuit, relying on the Supreme Court's ruling in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) ("AEP"), held that the plaintiffs' claim of climate change-related nuisance--assuming its viability under federal common law--had been displaced by the Clean Air Act. The Ninth Circuit applied the AEP Court's determination that when a federal statute "speak[s] directly to [the] question at issue," federal common law does not provide a remedy, and relied on AEP's ultimate conclusion that the Clean Air Act has displaced any federal common law nuisance claim for climate change related injury.
The plaintiffs sought rehearing en banc, arguing that, unlike AEP, which applied the displacement analysis to a claim for injunctive relief – abatement of emissions – only, the Ninth Circuit erred in extending the analysis to claims for monetary relief. Whereas the panel's majority opinion concluded that Supreme Court authorities, Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), and Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1 (1981), together stood for the principle "that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement," plaintiffs argued that the two cases represented conflicting statements by the Supreme Court on the application of displacement to claims for money damages, with Exxon Shipping supposedly leaving open the possibility that claims for monetary relief should be treated differently.
The plaintiffs' argument received no support on petition for rehearing – not a single active judge on the Ninth Circuit voted to rehear the case. Plaintiffs' attempt to pose the issue as worthy of Supreme Court review to address a conflict in the Court's precedent similarly was of no avail, and with the denial of the petition for certiorari, after more than five years of litigation,Kivalina had run its course.
Impacts of the Holdings in Comer II and Kivalina
The recent results in Comer II and Kivalina suggest that climate change-related injuries are best dealt with through the regulatory process, and not in the courts. The Ninth Circuit's holding in Kivalina leaves open the possibility – however small – that plaintiffs may pursue a remedy for alleged climate change-related injury under state nuisance law. Indeed, a concurring opinion in Kivalina, issued by District Judge Philip Pro sitting by designation (who noted also that he would have affirmed the judgment of the district court on grounds that the plaintiffs' lacked Article III standing to sue), raised this point: "Once federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law."
Although resort to state nuisance law may be a possibility, it presents its own series of complications. Preemption is but one area of concern. It is also reasonable to presume that courts being asked to adjudicate state nuisance law claims would be greatly influenced by Comer I and II and Kivalina, particularly the district court judgments' skepticism concerning a plaintiff's ability to demonstrate even the limited causation necessary to prove Article III standing and, a fortiori, the higher showing of causation necessary to prove a claim on the merits.
In the case of nuisance premised on emissions emanating from locations all over the world dating back decades or centuries, courts undoubtedly would struggle to identify which state's or states' law would apply (and whether it should apply current nuisance law or the law as it existed at the time of emission). Conflicts in the nuisance law of the various states, along with different rules concerning allocation of fault by the jury, would present additional roadblocks.
Indeed, state nuisance laws typically impose additional legal elements that would be difficult, if not impossible, for a climate change plaintiff to satisfy; for example, that the dispute be among neighboring or adjoining landowners. Quite simply, the outcomes of Comer I and II and Kivalina, following eight years of legal wrangling, defeat climate change-related nuisance litigation and the plaintiffs' lawyers looking for the next big tort docket. If plaintiffs are foreclosed from effective use of the often-undefined (or under-defined) "federal common law" to create a cause of action where none previously existed, it is difficult to imagine a scenario in which climate change litigation could gain any traction.

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