[author: J. Wylie Donald] Left open by the Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011),was the question of whether state law nuisance claims for the emission of carbon dioxide were viable in the face of the Clean Air Act. That question continued to be answered in the negative with the decision of the Western District of Pennsylvania last month in Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P.(W.D. Penn. Oct. 12, 2012) (attached), which was appealed to the Third Circuit the Friday before Thanksgiving.1 In Bell, plaintiffs, neighbors to defendant’s coal-fired electricity generating plant, filed suit alleging: that the [defendant’s] atmospheric emissions fall upon their properties and leave a film of either black dust (i.e., unburned coal particulate/unburned coal combustion byproduct) or white powder (i.e., fly ash).
Moreover, the court held that the plaintiff could not establish that it was within sufficient geographic proximity to the defendant’s alleged “excessive” discharge of greenhouse cases to infer causation. In affirming that decision, a three-judge panel of the Ninth Circuit relied heavily on the U.S. Supreme Court's 2011 ruling in American Electric Power v. Connecticut (AEP), which held that the Clean Air Act and U.S. Environmental Protection Agency’s authority displaced federal common law claims over the emissions.SeeAmerican Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2535 (2011). In AEP, eight states, the city of New York, and three private land trusts brought a public nuisance action against various defendants for emission of carbon dioxide and other greenhouse gases that created a “‘substantial and unreasonable interference with public rights,’ in violation of the federal common law of interstate nuisance,” and sought injunctive relief through a court-ordered imposition of emissions caps.
Kivalina alleged that greenhouse gases, emitted by the energy producers, crossed state lines and resulted in damage to the village. Relying on the Supreme Court’s decision in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the 9th Circuit ruled that Congress spoke to this issue in Clean Air Act when it provided the Environmental Protection Agency (EPA) with the authority to regulate the emission of greenhouse gases from stationary and mobile sources in the United States. In the Supreme Court opinion, it was noted that EPA had already begun a rulemaking aimed at limiting greenhouse gas emissions from existing fossil-fuel power plants.
This is not news. It was established by the Supreme Court over a year ago in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011). This morning, the Ninth Circuit Court of Appeals acknowledged the rule and applied it to the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. ("Opinion") and affirmed the dismissal by the Northern District of California.
Amer. Elec. Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527 (2011).Case No. 12-1072.
The Court also noted that the judiciary must exercise great caution in adjudicating the claim, as the relief sought would affect the conduct of energy producers and energy policies worldwide, including substantially undermining the feasibility of fossil fuel production. One of the obstacles that the plaintiffs faced was the United States Supreme Court decision in Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) [AEP]. AEP held that the authority of the Clean Air Act and the Environmental Protection Agency (EPA) displaced federal common law in the area of public nuisance to enjoin a defendant's emission of greenhouse gasses.
159, 165, 167, 168, and 169, Motions to Dismiss (N.D. Cal. March 20, 2018).Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011).Kivalina v. ExxonMobil, 696 F.3d 849 (9th Cir. 2012).
at 13-14.18Id. at 15-17.19See Defendants’ Response to Motion for Hearing Status Conference, Juliana v. U.S., No. 6:15-cv-01517-TC (D. Or. Mar. 19, 2018) (informing the district court that it is exploring its options for further review).20See Warren Cornwall, In a San Francisco courtroom, climate science gets its day on the docket, Science Mag (Mar. 22, 2018, 4:00 PM), http://www.sciencemag.org/news/2018/03/san-francisco-court-room-climate-science-gets-its-day-docket.21Complaint at 1-4.22See, e.g., Am. Elec. Power Corp. v. Connecticut, 564 U.S. 410 (2011) (holding that claims for court-mandated emissions reductions from power plants are preempted by the Clean Air Act); Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (holding that the Clean Air Act displaced federal common law nuisance claims for damages caused by global warming).23Juliana, 217 F. Supp. 3d at 1262.
Kivalina v. ExxonMobil, 696 F.3d 849 (9th Cir. 2012).Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011). [View source.]
Claims of this ilk often have been vulnerable to dismissal for failure to establish causation, standing and redressability, and on political question grounds. (See, e.g., American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), ruling that federal common law claims against large greenhouse gas sources are displaced by CAA; Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), finding CAA displaced state common law tort claims alleging climate change-related injuries; Comer v. Murphy Oil USA Inc., 839 F. Supp. 2d 849, 868 (S.D. Miss. 2012), in which tort claims filed by residents of Mississippi Gulf coast after Hurricane Katrina were dismissed on the basis that it was displaced and preempted by CAA, and barred by political question doctrine.) It is likely that the three lawsuits recently filed in Marin County, San Mateo County, and the City of Imperial Beach, which are based on similar tort theories, would be at risk of dismissal based on similar rationales.