Two recent decisions continue the trend against plaintiffs in the climate change/public nuisance area. The U.S. Supreme Court earlier this week declined the request by an Alaskan fishing village to overturn a lower court ruling that the Clean Air Act preempts a federal common law claim of public nuisance attributed to so-called global warming and climate change.  See Native Village of Kivalina v. ExxonMobil Corp., No. 12—1072 (cert. denied 5/20/13).

We have posted on this case before.  The U.S. Court of Appeals for the Ninth Circuit held in 2012 that the Clean Air Act, and Environmental Protection Agency regulatory actions taken under the statute, displace the common law claim that various energy producing companies should be liable for the cost of relocating the village to avoid flooding and coastal erosion.  The Ninth Circuit ruling relied on the Supreme Court's prior decision in American Electric Power Co. Inc. v. Connecticut, 131 S.Ct 2527 (2011), dealing with the possibility of injunctive relief; plaintiffs here failed in their petition to the Supreme Court seeking a ruling that the federal statute does not displace common law claims for damages.

The battle lines may now shift to state common law claims against various entities over greenhouse gas emissions.  Even in state court, plaintiffs will likely have difficulty showing that a defendant's actions caused any alleged climate changes, and that the changes somehow were the proximate cause of the damages alleged -- and then how to apportion damages in light of any others who might be similarly situated to named defendants.  Any such battle at the state level risks creation of a hodgepodge of decisions throughout the country about what constitutes a nuisance in this area and about what gas emission levels are or are not tortious.  All readers ought to have profound reservations about the notion, inherent in all private climate change litigation, that the tort system is capable of adjudicating rights and responsibilities on the subject of global warming.

In the other recent climate change suit, the Fifth Circuit affirmed earlier this month that the doctrine of res judicata barred a proposed class action claim for alleged global warming-related damage to property after Hurricane Katrina. See Comer v. Murphy Oil USA Inc., No. 12-60291 (5th Cir. 5/14/13). We had posted on this one before also.  Plaintiffs alleged that the defendants' emissions had contributed to global warming, which somehow raised the temperature of the ocean, which somehow made hurricanes more powerful, which caused Hurricane Katrina to be more destructive to plaintiffs' property. After exhausting various unsuccessful complex appeals, the plaintiffs filed a new case with many of the same allegations. The lower court had earlier held that plaintiffs lacked standing, which barred this case. The district court also noted issues (again) with the statute of limitations; the political question doctrine; and on the merits. The Fifth Circuit heard oral arguments on the appeal of the dismissal of the second case, and affirmed that the earlier decision was final for the purposes of res judicata.