The End of Climate Change Litigation?

I’ve recently heard some lawyers heralding the end of Climate Change litigation after courts handed down a pair of rulings in the past year rebuking plaintiffs’ claims against big energy companies.  Most recently, the US Fifth Circuit Court of Appeals ruled that a claim brought by a group of Mississippi residents whose land was damaged by Hurricane Katrina was barred by the doctrine of res judicata.  And about a year ago, the US Ninth Circuit Court of Appeals decided that the Native Village of Kivalina’s claim for damages resulting from erosion of its land cause by climate change was blocked by the Clean Air Act and EPA action authorized by that act.

In Comer v. Murphy Oil USA, Inc., decided in May, a group of plaintiffs sued a number of energy and chemical companies, including BP, Chevron, Shell, Duke Energy, Dow Chemical, and many others.  The plaintiffs claimed that their property was damaged by Hurricane Katrina, which they claim was caused by climate change brought about by the defendants’ pollution.  That claim might be more than a little attenuated, but it wasn’t dismissed for that reason.  In fact, the claim was never heard on the merits.

The plaintiffs’ claim was dismissed before trial by the US District Court for the Southern District of Mississippi, which decided that the plaintiffs lacked standing and that the case was a non-justiciable political question.  Basically, the court said that the plaintiffs didn’t have the right to sue and that the matter at issue in the suit is better left to legislatures.

The plaintiffs appealed the district court’s decision, and a panel of justices on the 5th Circuit reversed, saying that the claims were justiciable and that the plaintiffs had standing to sue for nuisance, trespass, and negligence.  Before that decision took effect, though, the 5th Circuit voted to rehear the case en banc, meaning that the full slate of 5th Circuit judges would hear the case instead of just the small panel that originally heard the case.  Actually in this case, “en banc” meant that the full slate of judges minus those who had recused themselves would hear the case.  At the time, 16 judges belonged to the 5th Circuit.  Seven had recused themselves, and the remaining nine would hear the case.

After those nine judges voted to rehear the case but before the case could actually be reheard, an eighth judge ended up recused!  As a result, only eight judges were left active on the case, and those judges voted that they lacked a quorum, and so couldn’t hear the case, and dismissed.  The plaintiffs petitioned the Supreme Court to force the 5th Circuit to hear the case anyway, but the Supreme Court refused.  The plaintiffs then refiled their case in the district court which again dismissed, and the plaintiffs appealed right back to the 5th Circuit.  Now, to the 5th Circuit’s ruling in the case just decided in May, which is where the story gets interesting.

When the nine judges decided to rehear the case en banc, the earlier panel’s decision to reverse the district court was invalidated, meaning that the district court’s decision throwing out the plaintiffs’ case was again in force.  Or since the panel’s decision never took effect, the district court’s decision was never actually reversed and remained in place all along.  Then because the 5th Circuit couldn’t hear the case en banc because of a lack of quorum (and because the Supreme Court wouldn’t force the court to hear the case), the district court’s decision was final!

The 5th Circuit said that the plaintiffs’ claim was barred by the doctrine of res judicata, meaning that the claim was already decided when the 5th Circuit dismissed the case for lack of a quorum.  In other words, the claim was decided without ever having been heard on the merits, according to the 5th Circuit.  The claim was never heard on the merits, though, because half of the judges on the 5th Circuit felt they had to recuse themselves for some reason!

Native Village of Kivalina v. ExxonMobil gave climate change a fairer hearing.  The Native Alaskan Village of Kivalina and the City of Kivalina brought a suit similar to that brought by the Comer plaintiffs and against a similar plethora of defendants.  The plaintiffs sued for damages under federal common law alleging that the defendants’ pollution was a nuisance, not unlike the claims presented in Comer.  In this case however, the Ninth Circuit got closer to addressing the real issues at hand, namely what to do about climate change.

Nevertheless, the Ninth Circuit found against the plaintiffs without directly addressing the issue.  The court ruled that Congress displaced the federal common law nuisance claim alleged in this case by passing the Clean Air Act (during the Nixon administration), meaning that the plaintiffs had no cause of action on which to sue, and so the court affirmed an earlier ruling by the US District Court for the Northern District of California, which held that the plaintiffs’ claim was a non-justiciable political question and that the plaintiffs lacked standing.  Again, the court held that the issue is better left to the legislature and that the plaintiffs didn’t have a right to sue because their injuries are too attenuated from the defendants’ actions.

Okay, so plaintiffs probably aren’t going to get any money out of big polluters because of damage resulting from climate change.  I don’t know if that means the end of climate change litigation, though.  Environmentalists might have success suing to force the government to act under statutes like the Endangered Species Act, but those cases, to my knowledge, have yet to be filed.  People who have suffered harm from climate change and whose land is disappearing because of sea-level rise might be out of luck, though, when it comes to trying to get any money to help manage their displacement from the biggest polluters contributing to climate change.

The Ninth Circuit, recognizing the dilemma, said, “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.”  I doubt that’s much comfort given the fact that Congress is so incapable of accomplishing anything.  What’s to be done when the courts are just as incapable?


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