1. Climate Change Torts
Environmental Law
Oct. 9, 2019

7. Identifying specific sources of GHGs – and potential defendants

8. Climate Change Litigation: It’s already here
Already active trial docket nationally
159 climate lawsuits in U.S. since Trump Administration took office
Types: broader, more various than expected
NEPA, Endangered Species
Insurance coverage disputes
Most notable actions: federal common law nuisance actions

10. Courts as Battlefields in Climate Fights
Climate Change Nuisance Lawsuits: The first wave of federal common law torts
Courts as Battlefields in Climate Fights
Erosion of the shoreline in Kivalina, Alaska, has led to a closely watched climate-change lawsuit.
By JOHN SCHWARTZ
Published: January 26, 2010

12. The Big Three Connecticut v. AEP (2d Cir.)
Eight AGs sued five power companies
U.S. Supreme Court ruled that federal common law nuisance claims were displaced by Clean Air Act
Comer v. Murphy Oil Co. (5th Cir.)
Class action suit for Katrina property damages
Targets oil, coal, chemical and insurance companies
Fifth Circuit has dismissed in very odd fashion; district court just dismissed re-filed complaint and on appeal again
Native Village of Kivalina v. Exxon Mobil (9th Cir.)
District court in California dismissed as political question
Ninth Circuit dismissed on displacement grounds as well

13. Climate Change Liability -- Key Thoughts and Themes
Massachusetts v. EPA will continue to bear fruit
Should fate of nuisance suits differ?
Relief sought (injunctions vs. damages)?
Claims and harms alleged?
Types of plaintiffs bringing claims?
The battle to get into court is different than the battle within the court
Causation
Effectiveness of remedy

14. The second wave: State Law Torts Claims
New wave of lawsuits in 2018 premised on state law claims, usually in state courts.
Thirteen counties and cities, one state (Rhode Island), one trade group (Pacific Coast Federation of Fisherman’s Assocation)
Claims: public/private nuisance, strict liability for failure to warn/design defect, negligent failure to warn, unjust enrichment, and trespass
Relief sought: compensatory damages, attorney’s fees, punitive damages, disgorgement, and (for some) injunctions and adaptation program funding

15. Exciting times… Removal and remand petitions:
1st Circuit denied stay of remand; emergency petition to SCOTUS
10th Circuit reviewing Colorado district court’s denial of stay; second emergency petition to SCOTUS
Justice Roberts requested briefing on Colorado petition by Oct. 18, 2019

16. Future Directions in Climate Change Litigation
Adaptation of tactics and strategy from tobacco and asbestos litigation
Collateral effects of certain claims (conspiracy)
Focus on legislative solution
Warren plan includes legislative limits
OGCI suggestion of preemption (and response)

17. Tallies emissions back to 1882
Claims about 5 percent of historical global carbon emissions from Exxon
Alleges most releases occurred after climate concerns first raised

19. Climate Attribution Science and Litigation?

21. Public Trust Litigation
Public trust doctrine
Limits on state’s ability to alienate resources
Analogous to fiduciary duty
Used in water, submerged property cases
Is the atmosphere a public trust?
Juliana v. United States – awaiting Ninth Circuit ruling after extraordinary SCOTUS order on stay
Meanwhile, in Texas: Bonser-Lain v. TCEQ, 201st Dist. Ct., Travis Co., filed July 22, 2011

22. Professor Tracy Hester
University of Houston Law Center
(office)