common law

Greenhouse Protection Racket — An Update

by Marlo Lewis on September 2, 2010

in Global Warming, Legal

Last week, the Obama Administration filed a brief  on behalf of industry petitioners urging the Supreme Court to vacate an appeals court decision (State of Connecticut et al. v. American Electric Power et al.) that would allow States and private parties to sue coal-burning electric utilities for their alleged contribution to global warming-related “injuries.”

The brief clearly lays out the absurdities of attempting to regulate greenhouse gases via common-law public nuisance litigation. Because global warming is, well, global, practically anyone on Earth could claim to be a victim. And because companies emit carbon dioxide (CO2) only as a byproduct of providing goods and services (electricity, cars, food, medical care, bites of information, etc.) to people, practically everyone on the planet could be sued as a contributor to the alleged injuries. In the memorable words of South Park’s hilarious global warming episode, Two Days Before The Day After Tomorrow, “We all broke the dam!”

In addition, the Obama brief points out that, “Establishing appropriate levels for the reductions of carbon dioxide emissions from power plants by a ‘specified percentage each year for at least a decade’ (as Plaintiffs request), would inevitably entail multifarious policy judgments, which should be made by decision-makers who are politically accountable, have expertise, and are able to pursue a coherent national or international strategy — either at a single stroke or incrementally.”

Yet the brief stops short of reaching the obvious conclusion implied by its argument, namely, that climate policy is a “non-justiciable political question.” Instead, it advises the Supreme Court to direct the court of appeals to reassess its decision on “prudential” grounds. Rather than seek a decision that would preempt all future CO2 litigation, the brief instead seeks to put one particular CO2 lawsuit on ice.

I smell a rat. The Administration, I suspect, does not want the Court to rule that the political question doctrine precludes public nuisance litigation against CO2-emitters, because it wants the only solid, durable shield against litigation chaos to be the EPA’s “displacement” of common-law injury claims via the agency’s endangerment rule and the ensuing regulatory cascade.

Just as the Administration used the endangerment rule to try and spook Congress and industry into supporting cap-and-trade, it is now using CO2 litigation to try and spook them into supporting — or at least not aggressively attacking — EPA regulation of greenhouse gases via the Clean Air Act. 

In short, as I discuss in a column this week in Pajamas Media, the Administration needs to keep the prospect of CO2 litigation alive in order to sustain the ”greenhouse protection racket” — the strategy of regulatory extortion — on which warmists increasingly rely to promote their agenda.

California federal court dismisses global warming common law nuisance lawsuit

by Marlo Lewis on October 16, 2009 · 3 comments

in Global Warming, Legal

My weekend is starting out fine, thanks to this happy news.

Peter Glaser, an environmental attorney with Troutman Sanders, just sent around his analysis. Here it is:

California Federal Court Dismisses Global Warming Common Law Nuisance Lawsuit

In another chapter in the continuing saga of whether energy companies can be sued under tort law for emitting greenhouse gases (GHGs), a federal district court in California yesterday dismissed a lawsuit brought by the Kivalina Alaska Native Village and others against a large number of energy companies.  The Court became the fourth federal district court to find, in essence, that there is no common law nuisance tort of global warming.  One of those district court decisions, however, was recently reversed by the United States Court of Appeals for the Second Circuit in the Connecticut v. AEP case, which we reported on extensively in a previous client alert available at the link provided below. 

The lawsuit dismissed yesterday alleged that the defendants’ GHG emissions contribute to global warming that has diminished the Artic sea ice that protects the Kivalina coastline.  As a result, the plaintiffs argued that their protection from winter storms has diminished, resulting in erosion and destruction of the land which will require that Kivalina’s residents be relocated.  Plaintiffs sought monetary damages for these impacts, which they estimated in a range of $95-400 million.

The United States District Court for the Northern District of California dismissed the lawsuit on the ground that the case involved a political question more properly decided by the legislative and executive branches.  The court also concluded that the plaintiffs lacked standing.  On the political question issue, the Court ruled that:

Regardless of the relief sought, the resolution of Plaintiff’s nuisance claim requires balancing the social utility of Defendants’ conduct with the harm it inflicts.  That process, by definition, entails a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by Defendants….the allocation of fault – and cost of global warming is a matter appropriately left for determination by the executive and legislative branch in the first instance.

On standing, the court ruled that “[i]n view of the undifferentiated nature of greenhouse gas emissions from all global sources and their worldwide accumulation over long periods of time, the pleadings make clear that there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time.”

The decision will undoubtedly be appealed to the United States Court of Appeals for the Ninth Circuit, a court known for its liberal outlook.  At the same time, one of the other lawsuits, involving allegations that energy companies’ emissions contributed to Hurricane Katrina, is now pending and awaiting decision in the United States Court of Appeals for the Fifth Circuit.  Defendants in the Second Circuit Connecticut v. AEP case are currently considering whether to seek rehearing.  Ultimately, this issue may end up in the Supreme Court.

See our discussion of the Second Circuit Connecticut v. AEP case and the issues these global warming tort lawsuits raise.

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P.S., I also blogged on the Second Circuit case here.