Search Results for ‘kivalina’

Andrew Grossman on municipal climate suits

 

In a recent Cato Daily Podcast with Caleb Brown, Cato adjunct scholar Andrew Grossman of Baker & Hostetler discusses the “legally aggressive” new round of climate change litigation, in which municipalities in California and Colorado, as well as New York City, have sued energy producers and distributors seeking to recover damages over the release of carbon dioxide into the atmosphere.

As Grossman notes, the idea of suing over the role of carbon emissions in climate change has by this point been tried many times. The most obvious approach would be to sue large industrial emitters of carbon, which is what some state governments did in one of the most prominent cases, filed against electric utilities. In its 2011 AEP v. Connecticut decision, however, the Supreme Court ruled that such outputs were regulated comprehensively and exclusively at the federal level through enactments like the Clean Air Act, and were not subject to an additional level of state regulation through public nuisance claims. Suits on other theories, such as Comer v. Murphy Oilfrom the Fifth Circuit and the Kivalina case in the Northern District of California, have been launched “to enormous bombast and press attention and they have all bombed out…. Those cases were the low-hanging fruit. Those were the more obvious legal theories if you were going to try to bring this kind of case,” he says.

Now the question is whether litigants can accomplish an end run by instead attacking upstream, pre-emissions activity, specifically the extraction and distribution of fossil fuels destined to be burned. Ambitiously, some of the new suits attempt to apply state common law to activities occurring around the world – to the doings of worldwide corporations such as Royal Dutch-Shell, for example, and to oil production from places like the coast of Norway and its subsequent use by European motorists. Needless to say, many of these processes are comprehensively regulated by the laws of the European Union and its member countries. Doctrinally, then, the new efforts get into even deeper water (so to speak) than strictly domestic claims. From the podcast:

If a court in California is going to go around telling Norway what to do, well, gosh, Norway may not really like that. And what do you do in that instance? It’s not apparent to me how this works. How does the court figure out what Norway’s regulations are and what Norway is doing about this? Who’s going to tell them? I don’t know. What if Norway disagrees with whatever it is that the court decides needs to be done in this case? Does Norway complain to the court? Do they send an ambassador to file a brief or something? I don’t know. This has never happened before. And what if Norway decides that they don’t like whatever it is the court is doing and they’re going to impose, say, reciprocal trade tariffs, or something like that, against the United States on the basis of one of these rulings? Does the court hold them in contempt?

Listen to the whole thing here (cross-posted from Cato at Liberty).

Climate change suit roundup

Supreme Court and constitutional law roundup

New at Point of Law

Things you’re missing if you’re not keeping up with my other site:

Legal consequences for denying climate-change consensus?

The idea does seem to be in the air (Coyote, Aug. 5; Alex Lockwood, Jul. 31 but note Aug. 4 post backtracking somewhat). Lockwood writes from the U.K., which of course lacks our First Amendment. On the idea of staging show trials of energy executives for propagating incorrect opinion, see Point of Law, Jun. 23, as well as Kivalina suit coverage.

Alex Beam on Eskimo global-warming suit

Don’t expect the much-hyped Kivalina suit to bring down Big Energy, the columnist says, but it might just keep the lawyers at Hagens Berman in BMWs:

The Inupiat Eskimos are perfect, jury-worthy plaintiffs. They have occupied their tiny barrier reef, just a few feet above sea level, “since time immemorial,” according to the lawsuit. They are poor. They live in harmony with nature, according to the documentary. (Pay no attention to those all-terrain vehicles zipping around town, and the kid flashing the gang sign.) …

Some judges may be liberal, but they’re not idiots. They know that utilities sold electricity to Americans because their customers wanted to jack up the AC. In fact, there isn’t a utility in America that hasn’t spent the past 20 years begging its customers to use less oil and gas. There is an inconvenient truth if I ever saw one.

Not to be missed (“Eskimos, whales, and luaus…Oh my!”, Boston Globe, May 24).

“Lawsuits that benefit only lawyers”

Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions

seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”

With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).

Inside the Eskimo global-warming suit

Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:

Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.

More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.

Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.