Marten Law: Climate Change Lawsuits Get Chilly Reception

   By Dustin Till, Associate, Marten Law Group PLLC

"The U.S. District Court for the District of Columbia recently dealt another blow to advocacy groups attempting to compel federal action on climate change via common law causes of actions. In Alec L. v. Jackson, 2012 U.S. Dist. LEXIS 75791 (D.D.C. May 31, 2012), the court dismissed a lawsuit alleging that six federal agencies had violated their fiduciary duties to preserve and protect the atmosphere as a commonly-shared resource under the public trust doctrine," writes Dustin Till.  "Relying on the Supreme Court's recent decision in PPL Montana, LLC v. State of Montana, 132 S. Ct. 1215, 182 L. Ed. 2d 77 (2012), the court ruled that the plaintiffs' public trust claims arose under state law and did not present a federal question over which the court had jurisdiction. The court also ruled, in the alternative, that even if a federal cause of action existed, the public trust doctrine had been displaced by the Clean Air Act. The court's preemption rulings were based, in large part, on the Supreme Court's landmark decision in American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011) (AEP), in which the Court held that federal common law nuisance claims seeking to enjoin greenhouse gas emissions were non-justiciable under the political question doctrine."

"The court's order in Alec L. is the latest in a string of recent decisions dismissing common law climate change lawsuits," explains the author. "Prior to Alec. L, the U.S. District Court for the Southern District of Mississippi dismissed a class-action lawsuit that sought monetary compensation from chemical and oil companies for damages suffered during Hurricane Katrina. Comer v. Murphy Oil USA, Inc., 2012 U.S. Dist. LEXIS 39580 (S.D. Miss. Mar. 20, 2012). The court ruled that the plaintiffs lacked standing; that their claims were barred by res judicata and the political question doctrine; and that the common law claims had been displaced by the Clean Air Act. As discussed below, common law claims filed in state court have met with similar fates."

"While the weight of authority suggests that courts will not entertain common law climate change cases, the door has not been completely shut. AEP left open the question of whether common law suits seeking monetary damages (as opposed to claims seeking to enjoin emissions) remain viable," Till points out. "Such a case, Native Village of Kivalina v. ExxonMobil Corp., (briefs available to Lexis.com subscribers at Native Village of Kivalina v. ExxonMobil Corp., 2009 U.S. 9th Cir. Briefs 17490 (9th Cir. July 7, 2010)), is currently pending before the Ninth Circuit, and the decision in that case is certain to further shape the contours of standing and justiciability in relation to common law climate litigation."

As a lawyer with the Marten Law Group, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law Group writing ongoing articles for Lexis Nexis' Environmental Law and Climate Change Center. Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.

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