It seems that the future of public nuisance cases may soon be in the hands of the United States Supreme Court due to the “circuit split” that has resulted from a recent decision, or non-decision, by the 5th Circuit Court of Appeals. The 5th Circuit follows decisions in two other circuits reaching opposite results, giving us a trio of public nuisance cases that could possibly establish a “cap and trade” policy through tort litigation.
Just two weeks ago, the 5th Circuit was forced to dismiss the appeal in Comer v. Murphy Oil as a result of the recusal of half of the panel and the subsequent loss of quorum. In the appeal, the plaintiffs, most residents of Mississippi, attempted to link some of the nation’s leading energy producers with the damages they sustained from Hurricane Katrina by arguing that the damages were intensified by global warming resulting from defendants’ release of greenhouse gases. The 5th Circuit’s dismissal resulted in the reinstatement of the holding of the lower court that the plaintiffs lacked standing because of the tenuous link between their claimed damages, the defendants’ emissions, and the alleged global warming. The plaintiffs will have 90 days to file a petition for review with the Supreme Court.
In September 2009, the 2nd Circuit Court of Appeals reached an opposite conclusion in its decision in Connecticut v. AEP. The 2nd Circuit found that plaintiffs, consisting of states, private land trusts, and New York City, had constitutional standing to bring a public nuisance claim against United States utility companies for their alleged contributions to “climate change”. Unlike in Comer, however, the plaintiffs did not sue for monetary damages, but for a court order requiring the utility companies to cap their emissions. The defendants were to file a petition for review with the Supreme Court by this week.
Rounding out the trio of recent public nuisance cases is Native Village of Kivalina v. Exxon Mobil Corporation. In September 2009, the U.S. District Court for the Northern District of California dismissed a public nuisance claim filed by the Inupiat Eskimos of Alaska. The plaintiffs had argued that the ice barriers around their villages were melting due to the global warming caused by carbon emitters such as Exxon Mobil. The District Court held that the claims had justiciability problems due to the attenuated causation theories and the questionable scientific hypothesis at issue. This case is likely to be brought up to the 9th Circuit Court of Appeals for review.
As a result of Comer and AEP, soon the Supreme Court will have the opportunity to decide whether the judicial branch through public nuisance tort litigation can effectively create its own “cap and trade” policy. When that time comes, the Supreme Court may experience the same recusal issues as were present in Comer v. Murphy Oil as two Supreme Court Justices, Justices Alito and Breyer, own stock in defendant companies and Justice Sotomayor was involved in the 2nd Circuit review of Connecticut v. AEP. With their recusals, the court would be left with six justices, the minimum quorum requirement, and possibly an equally divided court. Looking back at how the court was divided in Massachusetts v. EPA, the 2007 decision granting the EPA the discretion to regulate greenhouse gas emissions, may provide an indication of how the remaining justices will side on the public nuisance cases.
Justices Scalia, Thomas, and Roberts, all Republican appointees, dissented in Massachusetts v. EPA, while Justice Ginsberg and Stevens, both Democratic appointees, and Justice Kennedy, appointed by President Reagan, were part of the majority decision. Justice Kennedy, often referred to as the swing vote of the Court, could be the deciding vote on the public nuisance issue. If he again sides with environmental regulation this could create the unique situation of an equally divided court which generally results in the Court affirming the lower decision. Which decision the Supreme Court chooses to review or whether they decide to hear the cases together may determine the final outcome should the Court choose to resolve this conflict under the current panel.