On October 15, 2009, the United States District Court for the Northern District of California (the “Court”) dismissed a lawsuit brought by the Kivalina Alaska Native Village and others against a large number of energy companies, continuing the saga of whether energy companies can be sued under tort law for emitting greenhouse gases (“GHGs”).  The Court became the fourth federal district court to find, in essence, that there is no common law nuisance tort of global warming.  One of those district court decisions, however, was recently reversed by the United States Court of Appeals for the Second Circuit in the Connecticut v. AEP case (see September 28, 2009 edition of the WER).

The lawsuit dismissed on Thursday alleged that the defendants’ GHG emissions contribute to global warming that has diminished the Arctic sea ice that protects the Kivalina coastline.  As a result, the plaintiffs argued that their protection from winter storms has diminished, resulting in erosion and destruction of the land which will require that Kivalina’s residents be relocated.  Plaintiffs sought monetary damages for these impacts, which they estimated in a range of $95-400 million.

The Court dismissed the lawsuit on the ground that the case involved a political question more properly decided by the legislative and executive branches.  The Court also concluded that the plaintiffs lacked standing.  On the political question issue, the Court ruled that:

Regardless of the relief sought, the resolution of Plaintiff’s nuisance claim requires balancing the social utility of Defendants’ conduct with the harm it inflicts.  That process, by definition, entails a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by Defendants….the allocation of fault – and cost of global warming is a matter appropriately left for determination by the executive and legislative branch in the first instance.

On standing, the court ruled that “[i]n view of the undifferentiated nature of greenhouse gas emissions from all global sources and their worldwide accumulation over long periods of time, the pleadings make clear that there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time.”
The decision will undoubtedly be appealed to the United States Court of Appeals for the Ninth Circuit, a court known for its liberal outlook.  At the same time, one of the other lawsuits, involving allegations that energy companies’ emissions contributed to Hurricane Katrina, is now pending and awaiting decision in the United States Court of Appeals for the Fifth Circuit.  Defendants in the Second Circuit Connecticut v. AEP case are currently considering whether to seek rehearing.  Ultimately, this issue may end up in the Supreme Court.

A link to our discussion of the Second Circuit Connecticut v. AEP case and the issues these global warming tort lawsuits raise can be found at: