We are not an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellant practice because the same tolerant impulse protects our own indiosyncracies.
- Justice Brennan in Michael H. v. Gerald D., 491 U.S. 110 (1989)
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The Second Circuit announced an important decision today that allowed several states and land trusts to continue their nuisance claim against various U.S. utilities over their release of carbon dioxide emissions, which contribute to climate change. From Reuters:
A U.S. Appeals Court reinstated on Monday a 2004 lawsuit by eight states and the city of New York against five of the largest U.S. utilities over their carbon dioxide emissions.
The lawsuit was dismissed in October 2005 by U.S. District Court Judge Loretta Preska, who said the issue was a political question for Congress or the President, not the judiciary.
Monday’s ruling by the U.S. Court of Appeals for the 2nd Circuit in New York said the judge “erred in dismissing two complaints on the ground that they presented non-justiciable political questions.”
The lawsuit against American Electric Power Co Inc, Southern Co, Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority public power system, argued that greenhouse gas emissions from their plants were a public nuisance and would cause irreparable harm to property.
The utilities are five of the largest carbon dioxide emitters in the United States. Around 40 percent of U.S. carbon dioxide emissions come from fossil-fueled power plants.
The plaintiffs aren’t seeking money damages but injunctive relief. More on the plaintiff’s claims from Courthouse News Service:
Carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, causing the earth’s temperature to rise, the plaintiffs claimed. They asked the court to force the power companies to cap and then decrease emissions, warning that the earth’s temperature “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”
They filed suit under federal nuisance law or, alternatively, state nuisance law. The district court dismissed their actions as barred by the political question doctrine, explaining that the issue of global warming is best left to the political branches of government to resolve.
The plaintiffs launched a multipronged appeal, claiming that their cases aren’t barred by the political question doctrine; they have standing to sue; their federal nuisance claim was properly pleaded; and the Clean Air Act doesn’t displace that claim.
The power companies argued the opposite on each of these points and urged the Manhattan-based appeals court to back the lower court’s decision.
In a 139-page opinion, the court found that all of the plaintiffs have standing to challenge the alleged contributions to global warming, which the court characterized as “interference with a public right in protecting natural resources.”
And although the Clean Air Act addresses pollution and global climate change, the court ruled, the Environmental Protection Agency “does not currently regulate carbon dioxide under the (Act) – at least not in the sense that EPA requires control of such emissions at this time.” In other words, the EPA has only proposed regulation; it hasn’t imposed it.
Without specific regulation, the Clean Air Act and other federal laws “touching on” global warming don’t prevent the plaintiffs from suing under federal nuisance laws, the court concluded.
The judges also rejected the power companies’ claim that the lawsuit would undermine the nation’s global climate-change strategy. This claim “simply reiterates their political question argument and must be rejected for similar reasons,” Judge Hall wrote.
Finally, the court determined that the Tennessee Valley Authority isn’t immune from suit based on its status as a federally chartered agency.
“The flaw in TVA’s … argument is that TVA is not the United States or Congress,” Hall wrote, noting that the TVA has sided against the government “in a number of cases.”
The Second Circuit stressed that they’re not being asked to solve the problem of global warming where government has failed. From The Australian:
“A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies, does not establish a national or international emissions policy,” US Circuit Judge Peter W. Hall wrote.
“Nor could a court set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit.”
The cases were seeking to limit and ultimately reduce carbon emissions at six domestic coal-fired electricity plants, rather than ask the court to “fashion a comprehensive and far-reaching solution to global climate change,” Judge Hall wrote.
US District Judge Loretta Preska in Manhattan dismissed the cases in 2005, saying the question of whether carbon-dioxide emissions should be reduced laid with Congress, not the courts.
. . .
Connecticut Attorney General Richard Blumenthal said: “This ruling restoring our legal action breathes new life into our fight against greenhouse gas polluters and changes the legal landscape to impose responsibility where it belongs.
“Our legal fight is against power companies that emit a huge share of our nation’s CO2 contamination, but it will set a precedent for all who threaten our planet with such pernicious pollution.”
New York Attorney General Andrew Cuomo said, “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.
“Today’s decision allows us to press this crucial case forward and address the dangers posed by these coal-burning power plants. My office will continue to be a leader in the fight to tackle the risks global warming poses to our environment, public health and economy.”
The cases were remanded to Judge Preska for further proceedings.
New US Supreme Court Justice Sonia Sotomayor was on the three-judge panel that heard arguments in the case in 2006. However, Justice Sotomayor wasn’t involved in the decision as a result of her elevation to the high court.
Representatives at AEP, Southern, Xcel and Duke said employees at their companies were still reviewing the decision and wouldn’t comment until they had had a chance to read the entire 139-page document.
A TVA spokeswoman said TVA had just received the decision and will review it in its entirety.
Another global warming case is a much watch. In Native Village of Kivalina v. Exxon Mobil, et al., a nusiance action was brought by an Alaskan village against oil companies. The villagers are seeking monitary damages. According to Wikipedia, Native Village of Kivalina v. Exxon Mobil is “the first is to recover ‘monetary damages for defendants’ past and ongoing contributions to global warming’; the second, to recover ‘damages caused by certain defendants’ acts in furthering a conspiracy to suppress the awareness of the link between these emissions and global warming.’” More from National Underwriter Property And Casualty Insurance News:
Still, the Anderson Kill panel noted that one case worth watching is Native Village of Kivalina v. Exxon Mobil, et al., in which an Inuit village in Alaska has brought a nuisance suit in February 2008 against major oil companies.
The plaintiffs are seeking joint and several liability for nuisance and civil conspiracy, claiming that the oil companies’ contribution to global warming has caused melting ice which will lead to the eventual flooding of their village.
The case was brought in California. John Nevius, a shareholder in the New York office of Anderson Kill, said a motion to dismiss was filed in June 2008 in Virginia. He said the insurance company defending the suit has cited the pollution exclusion in its motion.
You can read the Second Circuit’s decision here.
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In legal shenanigans spanning some 20 years—including a recent SCOTUS ruling reducing Exxon’s liability—Exxon, which has enjoyed record profits, is still fighting “to avoid any liability for punitives.” The current issue is whether interest should start to accrue during the original district court judgment, entered on 1996, or when the Supreme Court handed down its decision on 2008. Of course, Exxon argued that the “legal basis for an award was not sound in 1996.” More from the Los Angeles Times (emphasis added):
Exxon Mobil Corp. must pay victims of the 1989 Exxon Valdez oil spill $480 million more in interest on their delayed punitive damages awards as well as cover $70 million in the company’s own appeals costs, a federal appeals court ruled Monday.
The decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals more than doubles the oil giant’s costs in settling the lawsuits brought by fishermen, cannery workers, marine services and eco-tourism purveyors whose livelihoods were ruined by the nation’s most devastating oil spill.
. . .
The Supreme Court action reduced the amount due the average plaintiff to about $15,000.
By setting the interest rate clock back to the original 1996 jury award, though, the 9th Circuit decision could double that amount for each plaintiff.
. . .
Judge Andrew J. Kleinfeld dissented from the panel’s decision to make the oil company pay for the costs of appealing the jury award.
“Satisfying though it may be to shovel money from a large corporation to those whom it wronged, respect for the Supreme Court decision in this case and precedent in other circuits obligates us to award Exxon most, but not all, of its costs for its mostly successful appeal,” Kleinfeld, appointed to the appeals court by President George H.W. Bush, wrote in a dissent that ran twice as long as the majority’s seven-page opinion.
Hacker referred comment on whether the 9th Circuit decision would be appealed to Exxon’s headquarters in Irving, Texas. Exxon spokesman Tony Cudmore said the oil company “will review the opinion before commenting further.”
From the Ninth Circuit court case, Exxon Valdez v. Exxon Mobil Corp. (2009) (emphasis added):
Although Exxon has succeeded in reducing an original jury verdict of $5 billion by about 90%, it remains liable for a far-from-nominal punitive award of more than $500 million.
The controlling rule is Federal Rule of Appellate Procedure 39(a)(4), which provides that where “a judgment is affirmed in part, reversed in part, modified or vacated, costs are taxed only as the court orders.” Plaintiffs point to the last time we issued a mandate on punitives in this case, in 2001, when we ordered each party to bear its own costs. In re Exxon Valdez, 270 F.3d at 1254. The punitive damages award had been remitted at that time as well. Plaintiffs also stress that, in a case of mixed judgment, where each side wins something, this Court usually orders each party to bear its own costs.
Exxon contends that it is essentially the winner of the litigation and that plaintiffs should bear all, or at least 90%, of Exxon’s appellate costs. With some 20/20 hindsight, Exxon now characterizes the course of this case as having been all about the amount of money Exxon would have to pay in punitives. Having reduced that amount by 90%, it declares itself the winner. Yet this ignores the hard-fought, even relentless, battle Exxon waged to avoid any liability for punitives, a battle that resulted in an evenly divided decision by the Supreme Court in 2008 leaving in place our 2001 decision on vicarious liability. Exxon Shipping Co., 128 S.Ct. at 2616.
To bolster its position, Exxon points to the fact that the Supreme Court awarded Exxon its costs. But the default rule before the Supreme Court is that when the lower judgment is vacated, the petitioner gets costs “unless the Court otherwise orders.” Sup.Ct. R. 43.2. Rule 39 contains no such presumption: when a judgment is modified, “costs are taxed only as the court orders.” Fed. R.App. P. 39(a)(4). The dissent does not recognize the difference.
In this case, neither side is the clear winner. The defendant owes the plaintiffs $507.5 million in punitives-according to counsel at oral argument the fourth largest punitive damages award ever granted. Yet that award represents a reduction by 90% of the original $5 billion. In light of this mixed result, and mindful that the equities in this case fall squarely in favor of the plaintiffs-the victims of Exxon’s malfeasance-we exercise our discretion by requiring each party to bear its own costs.
Our decision is in accord with our usual practice when each side wins something and loses something. This court has consistently ordered each party to bear its own costs on appeals where punitive damages are upheld, but reduced.
. . .
Because the evidentiary and legal bases for the original judgment of punitive damages have not been overruled, we award interest on the final judgment of $507.5 million, at the statutorily set rate of 5.9%, to run from the date of the original judgment, September 24, 1996. Because the amount of the original $5 billion judgment has been substantially reduced, we order that each party bear its own costs.
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Recently, conservative SCOTUS justices Samuel Alito, Antonin Scalia, and Clarence Thomas in addition to Chief Justice John Roberts dissented in the SCOTUS decision—Caperton v. A.T. Massey Coal Co., Inc.—that determined a West Virginia judge should have recused himself, since “the Due Process Clause incorporated the common-law rule requiring recusal when a judge has ‘a direct, personal, substantial, pecuniary interest.’”
In this case, Chief Justice John Roberts “argued [in his dissent] that the ruling would damage public confidence in the judiciary,” since the “Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required.” However, the Court in this case asserted, “[T]he Court has identified additional instances which, as an objective matter, require recusal. These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” The Court also provided this guidance: “The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”
Chief Justice John Roberts also argued, “This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” Certainly, the courts can manage groundless charges, and I believe the dissenting conservatives justices in this case—including the Chief Justice—have done more to “erode public confidence in judicial impartiality,” especially since this case was about judicial impartiality. From Facing South:
After the Massey Energy coal mining company lost a $50 million verdict to a competitor, CEO Don Blankenship spent $3 million electing a friendly judge to West Virginia’s Supreme Court of Appeals who went on to cast the deciding vote in a case that overturned the verdict.
. . .
“At its core, the Caperton case was about the inherent conflict of interest when our elected officials depend on or are aided by large campaign contributions and excessive spending in the electoral process,” said Nick Nyhart, president of Public Campaign, a nonprofit that promotes public financing of elections. “Americans know that campaign contributions from wealthy special interests impact the policy decisions made by Congress on matters that affect the life and well being of all of us.”
Massey’s stock was down 6% in yesterday afternoon’s trading on the New York Stock Exchange, while other coal company stocks were down between 2 and 4%, Reuters reports.
The high court’s ruling is the latest in a series of recent setbacks for Richmond, Va.-based Massey. Last month Ohio State University President E. Gordon Gee resigned from Massey’s board under pressure from activists who argued that his promotion of sustainable energy was incompatible with Massey’s reliance on mountaintop removal mining.
And earlier this year, Santa Clara University in California divested its holdings in Massey because of the company’s record of environmental destructiveness. The company has also been the target of nonviolent protests over its environmentally destructive business practices.
White House photo by Paul Morse found here.
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Jeffrey Toobin on Chief Justice John Roberts:
His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
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