On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.
As most readers will know, last year,… More
Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, such public trust doctrine had been displaced by the federal Clean Air Act.
Yesterday, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal merit and good public policy are another matter.
In any case, the plaintiffs sued EPA and various other federal agencies, seeking a finding that the agencies have failed adequately to protect a public trust asset,… More
Yesterday, the Supreme Court announced its decision in American Electric Power v. Connecticut, holding that EPA’s authority to regulate greenhouse gases under the Clean Air Act displaced federal common law nuisance claims. I have always thought that the displacement argument was correct, so the decision is not really a surprise (and the 8-0 decision and crisp opinion only confirm that view). The decision is nonetheless important and,… More
Last month, in discussing the Administration’s brief in the American Electric Power case, I praised the nuanced and persuasive approach that the Administration took in seeking reversal of the 2nd Circuit opinion allowing the states’ public nuisance climate litigation to go forward. The states seeking to prosecute the law suit have now filed their brief and it turns out that they also do nuance. I still think that the Supreme Court will reverse,… More
This week, the United States filed its brief in American Electric Power v. Connecticut. The brief is a nicely nuanced and persuasive argument for dismissal of plaintiffs’ public nuisance claims against five large power generators. The brief is nuanced in that it acknowledges that plaintiffs have Article III standing – allowing the Court to avoid reaching a constitutional standing issue – and provides a vehicle for the Court to avoid reaching the political question doctrine issue.… More
I have previously expressed my distaste for public nuisance litigation to require reductions in GHG emissions. It cannot be more than a tactic in a war to the plaintiffs, because the chaos resulting from regulation of a global problem through a series of individual law suits has to be obvious to everyone. Now, apparently, that chaos is also obvious to the Obama administration, because it has filed a brief with the Supreme Court,… More