District Court Issues Strong Opinion Dismissing Kivalina Suit under Political Question Doctrine and for Plaintiffs' Lack of Article III Standing
Judge Saundra Brown Armstrong's opinion in Native Village of Kivalina v. ExxonMobil Corp., Case No. C 08-1138 SBA, Slip op. (Sept. 30, 2009) is a strong retort to the Second Circuit's recent opinion in Connecticut v. American Elect. Power Co., 2009 WL 2996729 (2d Cir. Sept. 21, 2009). In Kivalina, Judge Armstrong was faced with a public nuisance suit for damages estimated to run between $95 million and $400 million. She held that the court lacked subject matter jurisdiction under the political question doctrine, and that plaintiffs lacked Article III standing because their injuries were not fairly traceable to the defendants' alleged misconduct. In these respects, her conclusions were squarely against those of the Second Circuit in AEP.
Judge Armstrong proceeded from the standard presumption against federal jurisdiction, placing the burden on plaintiffs, as the proponents of federal jurisdiction, to establish their right to be in federal court. The court also refused to apply a lower standard to plaintiffs as governmental entities because theirs was a lawsuit for damages, not merely a suit to enforce a regulatory scheme.
Judge Armstrong agreed with the Second Circuit that the issue of global warming -- which implicates international relations through things like the Kyoto Protocol -- did not present an issue of foreign policy that was textually committed to another branch of government. Slip op. at 8-9.
But she parted company with the Second Circuit on the issue of whether the case was justiciable using judicially discoverable and manageable standards. Judge Armstrong observed that the tort of public nuisance requires the jury to determine whether there was an "unreasonable" interference with a right common to the public. That determination involves comparing the social utility of the defendant's conduct with the gravity of the harm it inflicts. Judge Armstrong makes a strong case that this determination is not one that can be guided by rational, principled legal rules:
[T]he factfinder will have to weigh, inter alia, the energy-producing alternatives that were available in the past and consider their respective impact on far ranging issues such as their reliability as an energy source, safety considerations and the impact of the different alternatives on consumers and business at every level. The factfinder would then have to weigh the benefits derived from those choices against the risk that increasing greenhouse gases would in turn increase the risk of causing flooding along the coast of a remote Alaskan locale. Plaintiffs ignore this aspect of their claim and otherwise fail to articulate any particular judicially discoverable and manageable standards that would guide a factfinder in rendering a decision that is principled, rational, and based upon reasoned distinctions.
Id. at 12 (citations omitted).
Judge Armstrong acknowledged that the Second Circuit expressed faith in the judiciary's ability to handle "new and complex problems" of environmental law, but she herself was "not so sanguine." Judge Armstrong pointed out that the Second Circuit's authorities were distinguishable because they "involved a discrete number of 'polluters' that were identified as causing a specific injury to a specific area." Id. But the Kivalina plaintiffs presented a far different case -- one where everyone in the world shared some responsibility, but only a handful of defendants were named, and where the harm at issue allegedly derived from emissions that occurred over more than a hundred years. Judge Armstrong noted that the causal chain in the Second Circuit's environmental cases was much tighter than the one pled by plaintiffs:
In a water pollution case, the discharge in excess of the amount permitted is presumed harmful. In contrast, the harm from global warming involves a series of events disconnected from the discharge itself. In a global warming scenario, emitted greenhouse gases combine with other gases in the atmosphere which in turn results in the planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which in turn causes the Arctic sea ice to melt, which in turn allegedly renders Kivalina vulnerable to erosion and deterioration resulting from winter storms.
Id. at 13 (citations omitted). Because of the uniqueness of plaintiffs' theory, the prior case law would not equip a court to determine the claims in a reasoned manner, Judge Armstrong concluded.
Judge Armstrong also took issue with the conclusion that plaintiffs' global warming claims did not impermissibly ask the judiciary to make policy choices better left to the representative branches. As she observed, deciding plaintiffs' public nuisance claim would require the court to determine what emission limits should have been imposed in the past, and to make the fundamental policy choice of who should bear the costs of global warming. Particularly where plaintiffs admit that nearly everyone on Earth bears some responsibility, but they have sued only a limited number of defendants from arbitrarily chosen industries -- including none from the transportation industry -- the court could properly conclude that the policy choice of allocating responsibility for global warming should be made by the legislative or executive branch in the first place.
Because plaintiffs' claims lacked judicially manageable standards and required the court to make policy choices better left to political branches of government, Judge Armstrong held that the political question doctrine applied.
Judge Armstrong also found that plaintiffs lacked standing because their injuries were not fairly traceable to defendants' conduct. Once again, the court analogized to earlier Clean Water Act cases. Those cases had involved presumptively-harmful discharges above a permit level into a readily identifiable waterway. In Kivalina, however, there were no federal standards on the release of greenhouse gases, and thus no presumptive causation could apply. Moreover, the release was not traceable, but rather diffused into the atmosphere and combined with gases released from countless other sources over centuries. Judge Armstrong analogized to water pollution cases discussing the concept of the "zone of discharge," which hold that where the plaintiff lives too far downstream, he is not within the zone that would make his injury fairly traceable to the defendant's release of effluent. She concluded that, given the lack of traceability and the tenuous chain of causation pled, plaintiffs lacked standing to sue because their injuries were not fairly traceable to the defendants' conduct.
The Kivalina opinion is a well-written critique of federal jurisdiction over global warming claims. One can expect that it will be heavily cited in petitions for rehearing en banc in AEP and Comer v. Murphy Oil Co., 2009 WL 3321493 (Oct. 16, 2009), which I posted yesterday.