One federal lawsuit seeking to address climate change through tort-based claims was recently dropped, while others await decisions in two U.S. Courts of Appeals.

In June, the state of California dropped its longstanding lawsuit against six major automakers, including Chrysler, Ford, General Motors, and the North American outlets of Nissan, Toyota, and Honda. In California v. General Motors Corps, et al. (9th Cir, 07-16908), California had alleged that the automakers, through their emissions of greenhouse gases, “from the combustion of fossil fuels in passenger vehicles and trucks, have knowingly created or contributed to” a public nuisance, in the form of global warming. In September 2007, a federal judge in California’s Northern District dismissed the case on the ground it raised non-justiciable political questions. (We discussed that ruling here and here.) The state appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, and the case was scheduled for oral argument on May 8 of this year. In April, however, California was granted a six-month continuance of the case, and in June it filed a motion to dismiss the case, which was granted.

In the motion, California Attorney General Jerry Brown explained that the state was dropping the case based on “recent events” at the federal level, specifically, the Obama Administration’s public acknowledgement that greenhouse gases endanger public health and welfare (the so-called “endangerment finding”) and its adoption of California’s “Pavley” auto emissions standards for greenhouse gases nationwide. The motion to dismiss also stated that California “continues to believe the district court erred in dismissing the complaint,” but has decided to “leave for another day” the resolution of its tort-based climate claims.

Meanwhile, two similar cases are awaiting decisions in the U.S. Courts of Appeals for the Second and Fifth Circuits, both of which were also dismissed by lower courts under the political question doctrine, while a fourth is awaiting trial in the Northern District of California.

In Connecticut et al. v. American Electric Power Company, Inc. et al. (2nd Cir, 05-5104), various states and environmental groups sued five of the country’s largest electric utility companies seeking to abate a public nuisance, global warming. A federal judge in the Southern Distinct of New York dismissed the case in September 2005, and the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. The panel assigned to the case included Judge Sonia Sotomayor, currently a nominee to the Supreme Court. Oral argument was held in June 2006 –more than three years ago – and for reasons no one quite knows the Second Circuit Court has yet to hand down a decision. (Judge Sotomayor was questioned about the “missing case” during her recent confirmation hearing, and stated that ABA guidelines prohibited her from discussing a pending case. She did, however, note that part of the reason for the delay was that the court was waiting for the Supreme Court’s decision in Massachusetts v. EPA, which indirectly affected the case — a ruling that was issued in April 2007.)

Meanwhile, Comer, et al. v. Murphy Oil USA, et al. (5th Cir, 07-60756), awaits a decision from the U.S. Court of Appeals for the Fifth Circuit, following oral argument in November of last year.  In that case, property owners along Mississippi’s Gulf Coast filed a class action lawsuit against several insurance companies as well as oil companies with respect to damages caused by Hurricane Katrina.  The plaintiffs alleged that the oil companies had “engaged in activities that have produced the greatest single source of by-products leading to the development and increase of global warming,” and that the environmental conditions in the Gulf of Mexico that fostered the strengthening of Hurricane Katrina were “the direct result of” global warming.  In August 2007, a federal judge in the Southern District of Mississippi dismissed the claims on the ground that the plaintiffs lacked standing, prompting the appeal to the Fifth Circuit.

Finally, a fourth tort-based climate change lawsuit was filed in the federal court in the Northern District of California in February 2008.  In Native Village of Kivalina v. ExxonMobil Corps (08-01138), a small, primarily Eskimo village situated on a barrier reef that is disappearing, allegedly due to rising water levels, from Alaska’s northwest coast, is seeking damages from 19 of the country’s biggest oil companies for their contribution to global warming, described by the village as “a nuisance that is causing severe harms to Kivalina.” In addition, the village claims several of these companies engaged in a civil conspiracy, by working in “agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue – so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior as a condition of further buying their products.” Plaintiffs have requested a jury trial, but several motions to dismiss the case are pending. Stay tuned to Warming Law for updates on these cases.