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 court.

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 ConocoPhillips Company.

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 emissions.

"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," he said.

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 cases.

"If you can't afford insurance, that's almost like not affording food," said Maples.

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