Hester on climate change decision

Sept. 24, 2012 -- The federal courts have not offered a warm welcome to plaintiffs with climate change tort claims.  In the wake of the U.S. Supreme Court dismissing federal nuisance claims brought by Connecticut and several other states against power companies operating coal-fired power plants, the Ninth Circuit Court of Appeals has dismissed a closely-watched nuisance claim by the Alaskan village of Kivalina against a host of oil, energy, and utility companies who had emitted greenhouse gases.  The villagers’ four-year odyssey in the federal courts has now come to an end – but the battle will likely continue in a new arena and new claims in the near future. Tracy Hester, visiting assistant professor and director of the Environment, Energy & Natural Resource Center, takes a closer look at the decision.

Q.)Why did they sue? 
The Village of Kivalina is located on a narrow spit of land along the western Alaskan coast line.  Because of reduced winter pack ice and more intense coastal storms, the village faces increased rates of coastal erosion that will likely threaten its existence unless the village moves to a safer location.  This location effort, according varying estimates, will cost from $96 million to more than $400 million.  The villagers filed their tort lawsuit in federal district court in California to recover their costs to relocate, and they alleged that climate change effects had contributed to the loss of pack ice and increased erosion rates.  Their complaint contended that the defendants had contributed to these climate change effects through their massive emissions of greenhouse gases.  The federal trial court dismissed their claims after the judge concluded that the plaintiffs had raised a political question that the federal courts could not hear.  The judge found that the villagers lacked standing to raise their claims.

Q.) What did the court rule?
The Ninth Circuit affirmed the dismissal, but it relied on different grounds. The appeals court closely followed the lead of the U.S. Supreme Court’s recent decision in Connecticut v. American Electric Power.  In that decision, the Court ruled that the Clean Air Act had displaced any federal common law of public nuisance that would support a climate change nuisance action.  While the U.S. Supreme Court faced a different situation in some respects (for example, Connecticut and the other states wanted an injunction to reduce the defendants’ emissions rather than money damages), the Ninth Circuit used the same rationale to close the door on future federal common law tort actions over emissions of greenhouse gases that contribute to climate change effects.

Q.) What’s next?
Despite this setback for the plaintiffs, the fight is not over yet.  Both the U.S. Supreme Court and the Ninth Circuit left open a path for plaintiffs to pursue their claims:  by using state tort laws in, presumably, state courts.  The U.S. Supreme Court expressly noted that the Clean Air Act’s displacement of federal common law did not automatically mean that the Act also preempted state tort laws, and it remanded those state law issues back to the Second Circuit Court of Appeals.  And while the residents of Kivalina also raised state law tort claims, the federal district court dismissed those claims without prejudice so that they could re-file their state tort law actions in state court. 
To date, the Second Circuit hasn’t ruled on Connecticut’s remanded state law claims, and the villagers of Kivalina have not yet filed a state court action.  Yet even if the villagers choose to appeal the Ninth Circuit’s ruling to the U.S. Supreme Court (which seems unlikely, given the Court’s recent ruling in the Connecticut case), the climate change tort struggle may simply shift to an entirely new battlefield:  rather than a small set of large clashes in the federal courts, we could see a larger number of claims brought under varying state tort laws in multiple state courtrooms.

To schedule an interview with Professor Tracy Hester, please contact: Carrie Criado, Executive Director of Communications and Marketing, cacriado@Central.UH.EDU, 713.743.2184; or John Kling, Communications Manager, jtkling@central.uh.edu , 713.743.8298.