Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

I've previously opined on this blog and elsewhere that global warming litigation -- at least cases in which individuals seek damages from companies that emit greenhouse gasses -- has no leg to stand on because causation is so attenuated and the issue is tied up with important political questions that are committed to the expertise of federal agencies like the EPA, as well as Congress.

My viewpoint was confirmed a few years ago in a case called Comer, in which a Mississippi federal court dismissed a class action filed by Hurricane Katrina victims who sought to blame their loss on various energy and mining companies.  The trial court had held that the chain of causation was too attenuated to confer constitutional standing on the plaintiffs, and it further held that the case should be dismissed under the political question doctrine because it required the federal court to decide policy questions about greenhouse gas emissions that were committed to the province of the political branches.

Comer had a curious subsequent history.  Plaintiffs appealed to the Fifth Circuit, where they won a partial victory, with the appellate court reversing the judgment on the state law claims of public and private nuisance, trespass, and negligence.  The defendants, however, petitioned for rehearing en banc, and the Fifth Circuit granted the petition and vacated the three-judge panel's decision.  Then, a Fifth Circuit judge was recused, resulting in the loss of a quorum for an en banc panel to act.  The Fifth Circuit thus dismissed the appeal and reinstated the District Court's opinion.  Plaintiffs did not petition the U.S. Supreme Court for certiorari, but instead petitioned for a writ of mandamus to require the Fifth Circuit to reinstate the appeal.  The Supreme Court denied plaintiffs' petition, and thus the District Court's opinion dismissing the lawsuit remained the law of the case.

In May 2011, Ned Comer and the other plaintiffs filed a virtually identical lawsuit in the same District Court asserting the causes of action the three-judge panel had said should have been remanded:  public and private nuisance, trespass, and negligence.  Plaintiffs sued the same defendants, and added a few more.  Feeling as if it was Groundhog's Day, the defendants once again moved to dismiss.

Yesterday the court issued an opinion unsurprisingly granting the defendants' motion to dismiss.  See Comer v. Murphy Oil USA, Inc., No. 1:11CV220-LG-RHW, Slip op. (S.D. Miss. Mar. 20, 2012).  The court's primary holding is that the suit is barred by the doctrines of res judicata and collateral estoppel.  The 11 plaintiffs in Comer I are the same plaintiffs who have brought Comer II.  The district court's order in Comer I was a final order dismissing the case for lack of jurisdiction, which is a decision on the merits for the purposes of res judicata.  Plaintiffs had a full and fair opportunity to argue the issue in the first suit.  The two suits involve the same "transaction," namely damages arising out of the occurrence of Hurricane Katrina.  Moreover, the admitted purpose of the second lawsuit is to convince the court that it was wrong in the first lawsuit.

The district court's res judicata holding should have ended the issue.  However the court, "out of an abundance of caution," went on to address the defendants' additional arguments.

The court held that plaintiffs lacked Article III standing to assert their state law claims.  The court focused on the causation element of the standing inquiry.  It noted that the U.S. Supreme Court found that a state had standing to bring a lawsuit to force the EPA to issue greenhouse gas regulations in Massachusetts v. EPA, 549 U.S. 497 (2007).  However, the Supreme Court gave special deference to a state  suing in its capacity as a quasi-sovereign, and expressly reserved the question of whether an individual would have standing to bring a global warming claim.  Moreover, the Supreme Court had acknowledged that causation regarding greenhouse gases emissions was a difficult global problem, and that any domestic reductions in emissions likely would be offset by increases in developing countries.

The district court also observed that in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), the Supreme Court was equally divided on the question whether states had standing to file lawsuits against corporations to reduce greenhouse gas emissions, and it expressly reserved the question whether individuals could assert such standing.

The plaintiffs in Comer II relied on authorities under the Clean Water Act finding standing where the defendants were merely alleged to have contributed to plaintiffs' injuries.  The district court distinguished their authorities, relying in part on Native Village of Kivalina v. Exxonmobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), which had explained that CWA cases only find "contribution" standing where a presumption of standing arises as a result of a defendant's violation of federally-mandated pollution limits.  Where, as here, there is no such federally-mandated limit on greenhouse gases (and thus no such violation), no presumption can arise.  Moreover, even the CWA cases recognized that a point of discharge can be too remote from the plaintiff's injury to be legally recognized as a contributing cause.  See slip op. at 21-22 (citing Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp., 95 F.3d 358 (5th Cir. 1996) (plaintiffs whose injury was 18 miles from discharge did not have standing to sue over the discharge)).

Ultimately, the Comer II court recognized, even plaintiffs admit that global warming is attributable to numerous natural and man-made causes that interact cumulatively over the period of centuries to create climate effects:

The plaintiffs cannot allege that the defendants' particular emissions led to their property damage.  At most, the plaintiffs can argue that the types of emissions released by the defendants, when combined with similar emissions released over an extended period of time by innumerable manmade and naturally-occurring sources encompassing the entire planet, may have contributed to global warming, which caused sea temperatures to rise, which in turn caused glaciers and icebergs to melt, which caused sea levels to rise, which may have strengthened Hurricane Katrina, which damaged the plaintiffs' property.

It is insufficient for the plaintiffs to allege that the defendants' emissions contributed to the kinds of injuries that they suffered.

Slip op. at 20-21.  The court concluded that such tenuous causation should not allow plaintiffs to send the defendants on a discovery odyssey "that will likely cost millions of dollars."

The district court in Comer II also held that plaintiffs' claims were non-justiciable under the political question doctrine as established in Baker v. Carr.  Plaintiffs argued that Massachusetts v. EPA had rejected that argument.  But the district court held that Massachusetts v. EPA was fundamentally different because it involved the proper construction of a congressional statute.  Here, the policy judgments regarding greenhouse gas emission levels were expressly committed to the EPA.  Indeed, the district court noted, the Supreme Court had stated "that it possessed neither the expertise nor the authority to evaluate the policy judgments that EPA offered as justification for refusing to regulate motor vehicle emissions, such as issues involving foreign relations."  Slip op. at 26.  The Comer II court concluded:

[T]he plaintiffs are asking the Court, or more specifically a jury, to determine without the benefit of legislative or administrative regulation, whether the defendants' emissions are "unreasonable."  Simply looking to the standards established by the Mississippi courts for analyzing nuisance, trespass, and negligence claims would not provide sufficient guidance to the Court or a jury. . . .

. . . The Supreme Court held that judgments concerning the reasonableness of greenhouse gas emissions are properly committed to the EPA, and if district courts were to make such judgments, those judgments would interfere and potentially conflict with the EPA's actions.

. . . The Court finds that the claims presented by the plaintiffs constitute non-justiciable political questions, because there are no judicially discoverable and manageable standards for resolving the issues presented, and because the case would require the Court to make initial policy determinations that have been entrusted to the EPA by Congress.

Slip op. at 28-29.

The district court in Comer II also concluded that plaintiffs' state law causes of action are preempted by the Clean Air Act and the EPA actions that it authorizes, relying primarily on American Electric Power Company v. Connecticut.  That case had held that the CAA preempted a federal common law right to seek abatement of carbon dioxide emissions from power plants.  The Comer II court reasoned that plaintiffs' state law claims here required the court to do the same thing the federal common law claim would have in Connecticut:  determine the reasonableness of the defendants' greenhouse gas emissions.  Accordingly, it held that the state law claims were similarly preempted.

The district court in Comer II also held that plaintiffs' claims were barred by Mississippi's three-year statute of limitations.  Katrina had hit in 2005, but the lawsuit was filed in 2011.  Plaintiffs argued that Mississippi's savings statute operated to toll the statute of limitations.  The savings statute gives a plaintiff a year to commence a new suit where the prior suit has been dismissed or abated because of a defect or other matter not affecting the merits.

The district court held the savings statute did not apply because there was a judgment of dismissal with prejudice entered in Comer I.  Plaintiffs could have asked the U.S. Supreme Court for a writ of certiorari, but they did not.  Accordingly, the judgment was final.

There is, however, a slim reed of hope for plaintiffs to file a Comer III.  In ruling on the statute of limitations, the court concluded that plaintiffs' allegations about their future risk for more severe storms and loss of property are not yet actionable, in part because plaintiffs did not seek injunctive relief.  "As a result, the Court finds that the only actionable claims filed by the plaintiffs are the claims concerning Hurricane Katrina, and those claims are barred by the statute of limitations."  Slip op. at 33.  Could another storm or another theory of injury produce a Comer III?  It shouldn't.  But with these Plaintiffs, who knows?

Finally, the district court granted the defendants' motion to dismiss regarding proximate cause, which is a required element of each of plaintiffs' state law claims.  Mississippi defines proximate cause as a cause "'which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.'"  Slip op. at 34 (citation omitted).  The court held that plaintiffs' theory couldn't meet this standard as a matter of law:

The assertion that the defendants' emissions combined over a period of decades or centuries with other natural and man-made gases to cause or strengthen a hurricane and damage personal property is precisely the type of remote, improbable, and extraordinary occurrence that is excluded from liability.

Slip op. at 35.

Judge Louis Guirola's opinion in Comer II is a strong reminder of the many difficulties that private plaintiffs would have trying to impose legal liability on companies for the purported effects of global warming.  Although I do not expect plaintiffs' counsel to simply vacate the field in the wake of this opinion, the strength of the arguments against liability suggest why there has been no great rush of firms to file suits asserting these theories of liability.

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As a kid, I was a huge fan of Carnac the Magnificent on Johnny Carson's Tonight Show.  In this first post of the new year, I thought I would channel my inner Carnac to make some predictions about what we can expect in the field of consumer class actions and mass torts in 2012.

1.  Wal-Mart v. Dukes will have tremendous impact on consumer class actions and mass torts.  Despite plaintiffs' attempts to limit the opinion solely to employment discrimination cases, the actual holdings in Dukes go to the fundamental core of class actions.  A unanimous Court said you can't deprive a defendant of its substantive right to challenge the elements of individual class members' claims just to make it easier to have a class.  Similarly, a unanimous Court strongly suggested -- even if the 8th Circuit didn't get it -- that Daubert rules matter at the class cert stage.  And a unanimous Court rejected the use of "trial by formula" rather than proof of actual damages.  These holdings are just as important -- if not moreso -- as the Court's articulation of the commonality standard, and you will begin to see the impact of these Dukes holdings in consumer class action cases this year.

2.  So many courts -- primarily in California -- have struggled to get around the clear preemption analysis in AT&T Mobility v. Concepcion that the U.S. Supreme Court is going to have to take up the issue of class arbitration waivers again.  It may not happen by the end of 2012, but too many courts have shot the bird to the Supremes since Concepcion.  Some argue that the decision does not apply to a particular cause of action under a state statute.  Others just find the whole arbitration provision containing a class action waiver void as against public policy.  But the simple fact is that it is nearly impossible to square these opinions with the very clear preemption analysis in Concepcion, and in the right case, the Court is going to have to issue certiorari to say that it really meant what it said.

3.  Courts may struggle for the right standard by which to judge personal jurisdiction, but plain ole stream-of-commerce theory is dead.  A majority of justices made that much plain in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011).  They just couldn't agree on a new standard.  But we know there must be some purposeful availment in addition to mere awareness that the product might reach the forum.  I believe most courts that find jurisdiction will rely on web presence in the forum as the "plus" factor that shows purposeful availment of the forum's laws.

4.  Prescription medicine plaintiffs will continue to cast their plain old failure to warn claims as "design defect" claims to try to get around the clear bar of the learned intermediary doctrine.  Hopefully, most courts will continue to recognize that medicines are unavoidably unsafe products for which you cannot have a design defect claim.  Indeed, you can't even propose a feasible alternative design, because to do so is to change the product into something else!

5.  Global warming lawsuits seeking to foist on certain industries humanity's collective responsibility for climate change will continue, but the defenses of standing, remoteness, proximate cause and the political question doctrine will continue to be strong defenses.  Because the Supremes dealt only with federal law issues in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), courts will still have to work these issues out as matters of state law.  We can expect plaintiffs to win at least one of these cases at a trial court level.  But the sheer magnitude of how far they are attempting to stretch state law should cause appellate courts to be more circumspect.

6.  Product sellers from tobacco to telephones will continue to vigorously defend their commercial speech rights under the First Amendment.  Appellate courts will grapple with these sellers' rights to not be forced to convey government messages about their products where there are other, less intrusive means of achieving the government's purpose.

7.  Plaintiffs will attempt to circumvent the federal preemption for generic medicines recognized in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), by trying to describe various claims -- such as express warranty claims -- as enforcing voluntarily adopted standards, rather than imposing state law requirements that conflict with federal law.  Plaintiffs will be hard-pressed to succeed on such dubious claims for at least two reasons.  First, the statements they point to will be consistent with what FDA has approved for the label, making plaintiffs' claims conflict with federal law.  And second, it will be very difficult to find statements that were actually material and became part of the basis of the bargain.

8.  The food and beverage industries are going to continue to be a primary target for consumer fraud claims.  Often these suits are fueled by health claims in advertising or on the label.  But increasingly such suits are being brought based on an ingredient in the product.  Although FDA has balked at issuing regulations that fully define when products may be labeled "natural," it has begun enforcement actions against products that use the term and contain synthetic preservatives or other synthetic ingredients.  Expect more of such consumer fraud class actions in 2012.

9.  Although class action suits over head injuries in professional football players may capture the imagination of sports writers and the public, the fact remains that class actions for personal injuries are almost never certified because the individualized issues regarding each class member's alleged injury, causation, and damages predominate over any common issues.  Don't expect 2012 to bring a big class action payday for professional footballers who allege concussion-related harm.

10.  The U.S. Supreme Court's majority and dissenting opinions in Kiobel v. Royal Dutch Petroleum, No. 10-1491, are going to be fascinating reading.  Kiobel, of course, raises the issue of whether legally fictitious entities -- corporations, rather than individuals or Nation-States -- can be sued under the Alien Tort Statute, which dates back to 1789.  The Second Circuit -- looking around the globe to foreign legal precedents -- held that corporations were not subject to ATS suits.  One may imagine that certain Justices who might concur in that result might bristle at relying on foreign legal precedents to get there.  While I'm willing to bet that the result in Kiobel is affirmed, I'll honestly admit that I can't predict what the opinion(s) will look like in reaching that result.

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I am traveling on the Left Coast for business this week.  And so it was with a certain amount of bemusement that I read this article that came across my Blackberry yesterday.  It explains that an environmental activist group, "Our Children's Trust," has decided to sue a number of states, seeking to force judges into ordering state governments to mandate the reduction of greenhouse gases, with the goal of preventing global warming. 

One of the activists is quoted as saying:

"We should be getting youths in front of the courts, not polar bears," Wood said, referring to a widely publicized attempt to have courts declare polar bears endangered as rising temperatures melt Arctic ice.

So how are these activists using America's youth to paint a compelling picture for judicial regulation of greenhouse gases?  Read this portion of a complaint apparently filed by the organization in New Mexico:

Climate change is adversely affecting [16-year-old] Akilah Sanders-Reed now.  Akilah is a skiing enthusiast and has been skiing regularly for the last 8 years.  Over that time, Akilah has seen a decrease in the snowpack on the slopes of Taos and Santa Fe.  The snowpack on those slopes has been thin and generally not good for skiing.  Akilah plans to continue skiing and to teach her younger brother to ski.  Therefore she is concerned that if the quality and amount of snowpack on the Taos and Santa Fe ski slopes continues to decline, she will have fewer opportunities to ski during the already abbreviated ski season in New Mexico.

Compl. para. 10.

Really?!!!  This is the tragedy that justifies judicial exercise of Executive Branch powers?  No skiing on Spring Break?  Bring back the cute, cuddly Polar Bears whose very existence is threatened, please!

The group's legal strategy seems as flawed as its storytelling.  It is suing the governors of various states on the so-called "public trust doctrine," which they describe as a common law theory.  But it's hardly a cause of action, like public nuisance.  Rather, it is simply a doctrine recognizing the sovereign's ownership interest in the land underlying navigable waters.  Ironically, the whole reason for the doctrine is to preserve the ability of the public to use such waters for commerce.  Our Children's Trust, of course, wants to invoke the doctrine to impede commerce and economic activity, state by state.

The fact that it can't cite in its New Mexico complaint a single New Mexico case applying the doctrine as they request gives you some idea of just what a long-shot their legal theory actually is.  They do nothing in their pleadings to anticipate the defenses that typically have proven fatal to climate change cases.  For example, they do nothing to establish the children's standing to assert a claim.  In public nuisance -- which is an actual cause of action designed to protect interference with the public's right of enjoyment of property -- the right to sue is reserved to the sovereign unless an individual can prove that he or she suffers a special injury that is different in type and degree from that suffered by the general public.  Notably, a bad ski day (if there really is such a thing) wouldn't cut it.

Similarly, defendants have argued that federal statutes and regulations preempt individual common law claims aimed at regulating greenhouse gas emissions.  Notably, even the cases that Our Children's Trust cite in its complaint expressly recognize the preeminence of federal authority.  For example, in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), the court observed that the state's rights and obligations under the public trust doctrine were "subject always to the paramount right of Congress to control [the] navigation [of the state's navigable waters] so far as may be necessary for the regulation of commerce with foreign nations and among the States."  Id. at 435.  Likewise, in Montana v. United States, 450 U.S. 544 (1981) -- also cited by plaintiffs -- the court cautioned that:

The State's power over the beds of navigable waters remains subject to only one limitation:  the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce. 

Id. at 551.

Moreover, the plaintiffs make no allowance in their pleading for defenses such as the political question doctrine, primary jurisdiction, or causation.  Notably, courts and advocates that have considered the climate change question have acknowledged that the issue of greenhouse gas emissions is a global one; emissions from one part of the globe may travel and have effects in other parts of the globe.  Thus, localized emissions caps -- like plaintiffs advocate -- have no real hope of abating the alleged nuisance locally, and local emissions cannot be deemed the substantial cause of alleged local climate change.

Ultimately, all that Our Children's Trust has achieved is making cash-strapped states that have no ability to solve the problem defendants in frivolous litigation that will cost lots of time and money to defend.  And they did so without finding a more compelling mascot than fluffy polar bears.

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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.

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Dust off your old property texts and grab your briefcases, ladies and gentlemen!  We're off to the races in private party climate change class action litigation!

Yesterday the U.S. Court of Appeals for the Fifth Circuit became the second federal appeals court in less than a month to reverse a trial court decision that had thrown out a climate change lawsuit for presenting a nonjusticiable political question.  See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. Oct. 16, 2009). 

(The Second Circuit previously had held that in the absence of comprehensive federal legislation regulating greenhouse gas emissions, states, municipalities and certain private organizations had standing to bring viable federal common law nuisance claims to impose caps on certain companies' greenhouse gas emissions.  See Connecticut v. American Elec. Power Co., 2009 WL 2996729 (2d Cir. Sept. 21, 2009.  A good description of that opinion can be found here.)

Comer is particularly important because it is a private class action for compensatory and punitive damages, not a suit brought by states or municipalities for injunctive relief.  And that means contingency fees.  And thus the promise of copycat lawsuits. 

The plaintiffs in Comer were property owners on Mississippi's Gulf Coast who had suffered property damage in Hurricane Katrina.  Their causation theory sounds a little like the litigator's equivalent to the game "Six Degrees of Kevin Bacon."  Plaintiffs sued a melange of energy, fossil fuel, and chemical companies, alleging that their greenhouse gas ("GHG") emissions contributed to an increase in air and water temperatures, causing a rise in sea levels and adding to the ferocity of Hurricane Katrina, which blew water and debris onto plaintiffs' property, thereby causing property damage.  Plaintiffs asserted a variety of theories under Mississippi common law, including public nuisance, private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.

The Fifth Circuit held that plaintiffs lacked standing to bring their claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy, but that they had standing to assert their claims for public and private nuisance, trespass and negligence.  The court further held that this latter group of claims did not present a non-justiciable political question.

The panel was comprised of two Clinton appointees and one Reagan appointee.  The Hon. James L. Dennis wrote the opinion, and Judges Carl E. Stewart and W. Eugene Davis joined in it.  However, Judge Davis (a Reagan appointee) noted separately that the defendants below also had moved to dismiss the claims for lack of proximate cause, and that he would have affirmed the dismissal on that ground.  Nevertheless, because the panel chose not to address grounds that the district court had not relied upon, Judge Davis joined in the panel opinion.  Nevertheless, Judge Davis's statement should give some hope to defendants who worried that the Fifth Circuit's determination that there was enough of a causal connection for standing might preclude successful motion practice in the district court on the issue of proximate cause.  Plaintiffs still have a very tough case to make on causation.

On the issue of the political question doctrine, the Fifth Circuit applied the standard test articulated in Baker v. Carr, concluding that the case did not involve issues:  (i) constitutionally committed to another branch of government, or (ii) that lack judicially discoverable standards for resolution, or (iii) that are impossible to decide without an initial policy decision being made that is not of a judicial character, or (iv) that require adherence to a previously-made political decision.  The Fifth Circuit said that the district court erred by relying on other district court decisions -- including the lower court decision in Connecticut v. American Electric Power -- that had interpreted the Supreme Court's decision in Chevron as requiring federal courts in air pollution cases to balance social and economic interests like a legislative body.  The Fifth Circuit reasoned that such an approach would make all air pollution cases non-justiciable political questions and would be contrary to how transboundary water disputes are determined.  It also would be contrary to the "long line of cases" holding that the Clean Air Act and Clean Water Act do not preempt state common law claims, the court said.

The Comer Court locked arms with the Second Circuit -- at least on the political question doctrine -- explaining:

Although we arrived at our own decision independently, the Second Circuit's reasoning [in Connecticut v. American Power] is fully consistent with ours, particularly in its careful analysis of whether the case requires the court to address any specific issue that is constitutionally committed to another branch of government.

On the issue of standing, the court divided plaintiffs' causes of action into 2 groups:  those that relied on a causal link between GHG emissions and Hurricane Katrina, and those that did not.  As to the first group, which included public and private nuisance, trespass and negligence, the only real standing element in dispute was whether plaintiffs' alleged injury was fairly traceable to the defendants' actions.  The court was careful to explain that the fact that the complaint may not adequately plead a cause of action under state law does not destroy jurisdiction, and that the Article III "fairly traceable" standard is not the equivalent of proximate cause under state law.  Clearly, the court was leaving open the very real possibility that, on remand, the district court would hold that plaintiffs' complaint fails to state a claim under state law. 

In reaching the decision that the "fairly traceable" standard had been met by plaintiffs' convoluted causation theory, the Fifth Circuit clearly felt constrained by the Supreme Court's decision in Massachusetts v. EPA, which seemed to accept "as plausible the link between greenhouse gas emissions and global warming" and the fact that "rising ocean temperatures may contribute to the ferocity of hurricanes."  Comer Slip op.  As the Comer court concluded, "the [Supreme] Court accepted a causal chain virtually identical in part to that alleged by plaintiffs" when it held in Massachusetts v. EPA that to meet the "fairly traceable" standard, the states merely had to show a contributing cause, not the primary cause, of their injuries.  Id.

As for standing in the Comer plaintiffs' second group of causes of action -- fraudulent concealment, unjust enrichment, and civil conspiracy -- the court employed the doctrine of "prudential standing" to conclude that plaintiffs lacked standing to bring these claims.  Plaintiffs' unjust enrichment claim was premised on the petrochemical companies artificially inflating the price of petrochemicals, impacting the public at large.  The fraudulent concealment theory was premised on the defendants knowing about global warming, but issuing misinformation to decrease public awareness of the phenomenon.  And the civil conspiracy claim was premised on the defendants misleading the government into not regulating GHG emissions.  Each of these theories had at its core a "generalized grievance more properly dealt with by representative branches [of government] and common to all consumers of petrochemicals and the American public," the Comer court observed.  In this way, these causes of action were very different from private claims for property damage.  As such, the court concluded that, for the second set of claims, plaintiffs lack standing under the doctrine of prudential standing, which:

encompasses "the general prohibition on a litigant raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."

Comer Slip op. (citation omitted).

It seems clear that the Comer decision will provide some encouragement to plaintiffs' lawyers who dream of scoring a lucrative victory in climate change litigation.  But when one examines the opinion closely, it is clear that such cases still are plagued with significant causation problems that will present early and frequent opportunities for defendants to move for dismissal or summary judgment.  Neither Comer nor the Second Circuit's decision in Connecticut v. American Electric Power solve these fundamental causation problems for plaintiffs.

Yesterday I also received the district court decision in Native Village of Kivalina v. ExxonMobil Corporation, Case No. C 08-1138 SBA, Slip op. (N.D. Cal. Sept. 30, 2009), in which the court held that the village's federal common law claim for nuisance failed for lack of Article III standing and was barred under the political question doctrine.  Point of Law describes the decision here.  If I have any thoughts to add after comparing Comer and Kivalina, I'll post them later this weekend.

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