When we discuss climate change litigation with colleagues or acquaintances unfamiliar with it, they are always a little incredulous. “The plaintiffs allege what? How could you prove that? There's no way they can win.” Courts, however, cannot rule from their impressions; instead, they must parse arguments and facts and explicate the legal reasoning that supports shutting climate change cases out of the courtroom. We have addressed in this blog many of those decisions as the climate change cases have wound their way up the appellate ladder. That statement-of-reasons rule, however, does not apply when a court is being asked to grant rehearing en banc. Then a judge can just say, “I’m not interested.” And the case is done.
That happened at the end of November in Native Village of Kivalina v. ExxonMobil Corp. when the Ninth Circuit issued its denial (see attached) of plaintiffs' petition for rehearing: “The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Appellants’ petition for rehearing en banc is DENIED.” Unless the plaintiffs file a petition for certiorari with the Supreme Court, and the Court accepts it (which we think unlikely with no circuit court split and the dismissal being a fairly simple extension of the Court's decision in American Electric Power), Kivalina is done. That means that there is no federal common law of nuisance relevant to greenhouse gas emissions whether a plaintiff seeks injunctive relief or damages. The federal Clean Air Act displaces the claim in both instances.
Two slim reeds remain for plaintiffs in the first wave of climate change litigation. First, they need to prevail on an appeal before the Fifth Circuit in Comer v. Murphy Oil USA, Inc., which will require overcoming over half a dozen independent bases for dismissal found by the trial court. Or second, they must succeed on a state-law-based theory of nuisance. As we have noted recently, the Clean Air Act is likely to be found to preempt such claims.
In light of the string of defeats in American Electric Power, Comer and Kivalina for plaintiffs, we went looking to see where the climate change plaintiffs' lawyers were going next. The websites of the lead Comer and Kivalina lawyers, Gerald Maples and Matt Pawa, were not helpful. However, journalist Andrew Longstreth didn’t rest on the websites; he reached out directly to Messrs. Pawa and Maples. Here is the future he found:
"Pawa said that he and his co-counsel in the Kivalina case are discussing their options, which include asking the Supreme Court to hear an appeal or filing a new case in state court that asserts state common law claims. Pawa likened the current state of climate change litigation to the early stages of suits against cigarette makers and companies with asbestos liability. Before plaintiffs' lawyers in those cases were able to win judgments and settlements, they were stymied by defense arguments. "We haven't exhausted our theories or our efforts," he said.
As stated above, the Supreme Court and state law nuisance paths do not seem likely to succeed. Mr. Maples suggested a different path:
"Future success in climate change litigation, he said, may depend on whether state attorneys general get involved, as they did in the tobacco litigation of the 1990s. With home insurance premiums rising as a result of climate change, Maples said, the litigation could become attractive to state AGs, who like consumer protection cases. 'If you can't afford insurance, that's almost like not affording food,'"
So, is climate change litigation going to take a new turn and become an issue about consumer protection and insurance rates? After reviewiing the Fourth Amended Complaint in Comer, we suggested in 2011 that this theory was something that bore watching. Here is the theory in action as alleged in Comer: “[Defendants' greenhouse gas emissions] put Plaintiffs' property at greater risk of flood and storm damage, and dramatically increase Plaintiffs' insurance costs." (Fourth Amended Complaint ¶ 37.) Thus, with the demise of federal common law claims, consumer protection law claims may be the next wave.