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Climate Change Lawsuits Heat Up, Led By An End Run In Connecticut

August 24, 2010

By James R. Copland

While the United States Senate tries to decide what to do about proposed global warming legislation (the Clean Energy Jobs and American Power Act), Connecticut’s attorney general and Democratic nominee for the Senate, Richard Blumenthal, is working to get courts to declare “cap and trade” regulations the law of the land.

Blumenthal’s suit, Connecticut v. American Electric Power, is the most prominent of a handful of “climate change” lawsuits filed by environmental activists, state attorneys general and trial lawyers. These suits threaten to impose a steep tax on the American economy, with no input from our national elected representatives.

In 2004, Connecticut, along with seven other states, New York City and three environmental groups, filed suit against five companies responsible for “approximately one-quarter of the U.S. electric power sector’s carbon dioxide emissions.”

Their lawsuit sought to hold the companies “jointly and severally liable for contributing to an ongoing public nuisance, global warming” and asked the court to force each company “to abate its contribution to the nuisance by capping its emissions of carbon dioxide and then reducing those emissions by a specified percentage each year.”

Blumenthal assumed center stage in promoting the suit and declared that “this legal crusade can help save lives and our planet from global warming.”

In 2005, Judge Loretta Preska of the federal Southern District of New York dismissed Blumenthal’s suit because it involved a “political question” appropriate to the other branches of government, rather than the courts. But last September, the U.S. Court of Appeals for the 2nd Circuit disagreed and allowed the suit to proceed, and in March, the full circuit declined to reconsider the case en banc.

Unless the Supreme Court decides to grant certiorari and hear the case, the lawsuit will return to district court. The corporate defendants will have to submit to expensive discovery, turning over documents and e-mails and subjecting top executives to depositions.

The scientific uncertainties, considerations of economic impact and required international coordination that make addressing climate change such a complex legislative and regulatory challenge also make the courts uniquely unsuited to tackle the issue.

Whether or not Judge Preska was correct in applying the political-question doctrine to throw out the Connecticut suit, the federal judiciary cannot be the proper forum for determining appropriate carbon-emissions standards for at least three reasons:

1. Our federal courts are constitutionally limited to hearing “cases and controversies” rather than making policy pronouncements, so they are traditionally bound to consider only cases involving actual injuries, clear causation and the courts’ ability to redress the injury in question.

Even if one assumes that Connecticut can show real, current injuries from global warming — as opposed to future, prospective harms — causation and redressability are a major problem for a lawsuit that, by its own terms, is targeting companies responsible for only 2.5% of all global carbon emissions.

2. The specific tort-law mechanism underlying the Connecticut suit, “public nuisance,” is peculiarly ill-suited for handling complex, modern environmental questions.

A centuries-old tort, public nuisance is an all-purpose cause of action that has historically been used to intervene against hog pens emitting offensive stenches, loud music disturbing the public peace or fallen trees blocking roadways. The public-nuisance tort is essentially a relic of pre-regulatory times, before zoning rules, noise ordinances and public road crews became society’s preferred means of handling such disturbances.

As Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit noted on July 26 in rejecting another state-led environmental lawsuit, the public-nuisance tort “operates at such a level of generality as to provide almost no standard of application,” so that courts are “hard pressed to derive any manageable criteria.”

Of course, trial lawyers and activist state attorneys general like public nuisance precisely because it is such a standardless, catch-all remedy.

Public nuisance was also the theory underlying another overly aggressive state-sponsored tort suit — Rhode Island’s now-dismissed $3 billion claim against paint companies, which sought to charge the companies for the state’s cost of removing decades-old paint containing lead.

That suit helped attract trial-lawyer dollars for the campaign war chest of another ambitious state attorney general, Sheldon Whitehouse, in his successful run for the U.S. Senate. The lawyer he hired to handle the case, Motley Rice attorney Jack McConnell, is now an Obama administration nominee for a federal district judgeship.

3. The big money sought in the Whitehouse-McConnell litigation highlights how Blumenthal’s suit would potentially open up the door to damages claims brought by trial lawyers that could cripple the power industry.

If the five power companies being sued in Connecticut were in fact held to be jointly and severally liable for global warming (however implausibly), the prospective damages could be limitless. Little would prevent the companies from being converted into asbestos-style bankruptcy trusts under the trial lawyers’ receivership.

The notion that trial lawyers could seek damages from companies for global warming is not merely speculative.

In the wake of Hurricane Katrina, asbestos lawyer F. Gerald Maples sued Murphy Oil and other energy companies on behalf of Mississippi residents, alleging that their hurricane-related injuries were “caused” by the companies — under the theory that the storm’s severity was a function of global warming, to which the energy companies had partially contributed.

The full 5th Circuit vacated a decision by a panel of that court that had initially allowed the lawsuit to proceed, but in May they decided not to issue any written decision in the case, because too many judges were conflicted due to stock ownership in one of the over 100 companies being sued.

Because the Murphy Oil case was dismissed without any binding 5th Circuit decision, there is no split among the circuits on the tenability of public-nuisance lawsuits over global warming. This lowers the odds that the Supreme Court will consider the Connecticut suit, which is unfortunate: Blumenthal’s lawsuit is an aggressive end-run around the democratic process, and a definitive ruling from the court could lay such efforts to rest.

Reasonable minds may differ about the causes and costs of global warming and the appropriate regulatory response to address it, but a standardless public-nuisance lawsuit is hardly the right mechanism for resolving the question.

Original Source:



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