By Andrew Longstreth
How's this for prescience? Eight years ago, New York City and
eight states explicitly warned about the dangers that global
warming posed to coastal areas in the United States. In a complaint filed in Manhattan federal court in 2004, lawyers for
the city and state governments predicted that as violent storms
become more common, infrastructure in New York City, including
its subway stations, airports and bridges, "will experience more
frequent and severe flooding from global warming-induced sea
level rise, causing hundreds of billions of dollars in damages
and wreaking havoc on the daily life of the City."
After Superstorm Sandy, that line seems almost eerie. But
after years of litigation, moral victories are just about all
that global warming plaintiffs have been able to muster in
Last week, the 9th Circuit Court of Appeals cut off one the last pending cases in what plaintiffs' lawyers once considered a
promising new practice area, denying a request to rehear en banc
an appellate panel's dismissal of a lawsuit filed by an Eskimo
village in Alaska. The village, known as Kivalina, had been
seeking money damages from the world's largest energy producers,
including ExxonMobil Corporation, Chevron Corporation and
The 9th Circuit's decision comes a year after the U.S. Supreme Court ruled in the 8-year old New York City case,
Connecticut v. American Electric Power Co, that federal common
law nuisance claims against four large power companies were
"displaced" by the Clean Water Act and the Environmental
Protection Agency, which has authority to regulate emissions.
The 9th Circuit panel that decided the Kivalina appeal issued in September cited the Supreme Court's decision in
American Electric Power when it affirmed a lower court's
dismissal of the case. The panel held that plaintiffs' federal
common law claims were not allowed since there is already a
federal statute and a federal agency empowered to address
"Our conclusion obviously does not aid Kivalina, which
itself is being displaced by the rising sea," wrote Judge Sidney
Thomas for a panel that also included Judge Richard Clifton and
District of Nevada Judge Philip Pro, sitting by designation.
"But the solution to Kivalina's dire circumstance must rest in
the hands of the legislative and executive branches of our
government, not the federal common law."
The Alaskan village was represented by a well-financed group
of plaintiffs' firms, including Susman Godfrey and Hagens Berman
Sobol Shapiro. Its lead lawyer, however, was Matthew Pawa of the
Pawa Law Group in Newton, Massachusetts, who has been the face
of the effort to sue over global warming. Pawa, who left Cohen
Milstein Sellers & Toll in 2001 to pursue climate change
litigation on his own, argued both American Electric Power at
the Supreme Court and Kivalina at the 9th Circuit.
Pawa said that he and his co-counsel in the Kivalina case
are discussing their options, which include asking the Supreme
Court to hear an appeal or filing a new case in state court that
asserts state common law claims. Pawa likened the current state
of climate change litigation to the early stages of suits
against cigarette makers and companies with asbestos liability.
Before plaintiffs' lawyers in those cases were able to win
judgments and settlements, they were stymied by defense
arguments. "We haven't exhausted our theories or our efforts,"
The other faint hope for climate change litigation lies with
claims by property owners who suffered losses in Hurricane
Katrina. Since 2005, they've been seeking money damages under
Mississippi state law claims against dozens of energy producers
that have allegedly contributed to the global warming that they
contend led to the hurricane. Southern District of Mississippi
Chief Judge Louis Guirola dismissed the case for the second time
in March, but the plaintiffs, represented by F. Gerald Maples of
New Orleans, have appealed to the 5th Circuit.
To succeed, they'll have to overcome Guirola's determination
that the plaintiffs could not trace their injuries to the
actions by the defendants and that the suit presented a
political question that was not suited for the courts.
Maples said he's not giving up hope, though. Future success
in climate change litigation, he said, may depend on whether
state attorneys general get involved, as they did in the tobacco
litigation of the 1990s. With home insurance premiums rising as
a result of climate change, Maples said, the litigation could
become attractive to state AGs, who like consumer protection
"If you can't afford insurance, that's almost like not
affording food," said Maples.
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