A definitive step toward providing legal remedies for the effects of climate change could occur before either an international treaty or legislative accord can be reached, according to attorneys tracking the issue in the courts.

"My prediction is that there will be more judicial action before there's enacted federal legislation or international agreement. That's a fair bet," said James May, a law professor at Widener University in Delaware. "In the absence of federal legislation and an international accord, these cases are the leading beacons for remedying the effects of climate change."

In September, a federal appeals court in New York issued a historic ruling regarding citizen and government enforcement of greenhouse gas emissions. Less than a month later, decisions in two similar cases came down. All three are awaiting appeal.

"These cases are an important part of the overall climate change landscape," said Bruce Myers, a senior attorney with the Environmental Law Institute. "One obvious reason is that they have managed to prop open the door for new lawsuits against any company or other entity that is a significant greenhouse gas emitter, creating the possibility of large damages awards or injunctive relief that alters how defendants like energy companies do their business."

Myers added, "The climate tort lawsuits are much more than just prods for regulatory or legislative action. It is important to remember that a new EPA regulation or federal cap-and-trade law, whatever its content, will probably have to run a gauntlet of legal challenges before it can be successfully implemented. In the meantime, these pending cases are compelling federal decision-makers -- in this instance, judges -- to consider the harms from climate change right now."

In Connecticut v. AEP, the 2nd U.S. Circuit Court of Appeals panel sided on Sept. 21 with a coalition of eight states, New York City and environmental groups that had filed a public nuisance lawsuit against the nation's largest coal-burning utilities.

Then in October, a three-judge panel on the 5th U.S. Circuit Court of Appeals in New Orleans cited the 2nd Circuit ruling in Comer v. Murphy Oil Co., which held that 14 individuals who filed a class-action lawsuit against insurance, oil, coal and chemical companies could seek relief for property damages resulting from Hurricane Katrina.

A judge on the U.S. District Court for the Northern District of California, however, dismissed a public nuisance lawsuit brought by the Alaskan coastal town of Kivalina against 24 energy and utility firms.

The ruling made public in Native Village of Kivalina v. Exxon Mobil Corp. explicitly broke from the 2nd Circuit's take on whether companies could be held liable for greenhouse gas emissions that contribute to global warming.

"What the courts in Connecticut and Comer said is you can't just wish these cases away because they're controversial or raise political questions," said Robert Percival, director of the Environmental Law Program at the University of Maryland. "They do raise what has for centuries been a traditional common law nuisance claim. It's just really difficult to prove the damages they want in Comer and Kivalina.

The tribe filed its notice of appeal to the 9th U.S. Circuit Court of Appeals on Nov. 5. The utility defendants in Connecticut filed a still-pending petition for rehearing in the 2nd Circuit on the same day, and the energy companies in Comer filed still-pending petitions for rehearing on Nov. 30, 2009.

Awaiting appeal

While the 9th Circuit will likely schedule oral arguments in the Kivalina appeal in early 2010, it remains to be seen when the 2nd and 5th Circuits will rule on the en banc appeals.

"Developments in the Comer case are interesting because on Dec. 2, the 5th Circuit requested the Mississippi Katrina victims to respond to the energy companies' rehearing requests," said Howard Shapiro of Van Ness Feldman. "That does not mean that the court will grant the rehearing and reconsider the case, but it signals at least that a majority of the 5th Circuit's sitting judges believe that some serious issues have been raised."

Said Widener University's May: "The appeals courts are waiting to see what happens in Copenhagen, not as a legal matter but as a psychological matter that will influence just how much interest they give those cases. Without an accord and without a cap-and-trade bill, it's more likely that the court will grant en banc review."

Of course, once the full court decides to review the case, a decision may not come down for months -- or even years.

"The courts will have no problem weighing in on the legal questions, deciding whether there is a political question or whether litigants have standing," May said. "On the other hand, we waited more than two years for the 2nd Circuit to render its opinion in Connecticut."

As for the 9th Circuit, legal watchers expect a reversal.

"Every circuit court thus far that has considered the question has reversed the district court's holding that dismissed on political question grounds," May said. "This includes circuit court judges most of whom were appointed by Republican presidents."

"I'd say there will be a reversal," May said. "But it's important to remember that the Supreme Court has a penchant for itself reversing controversial decisions out of the 9th and 2nd Circuits."

Supreme uncertainty

Legal experts remain divided on if -- and when -- the Supreme Court will decide to weigh in on the issue.

"If there's a circuit split, you'd have a much greater chance of Supreme Court review," said Michael Romey, a partner in the Los Angeles office of Latham & Watkins.

The very nature of the case makes review highly probable, May said.

"The court only hears about 80 cases a year, and just two years ago in Massachusetts v. EPA, it declined to engage the political question doctrine as applied to climate change," May said. "On the other hand, the amalgam of standing, political question, congressional authority, federalism, international policy, big business and 'the defining issue of our day,' coupled with the courts' recent penchant for reversing controversial circuit court decisions in environmental cases, imputes upon these cases an almost irresistible quality for review."

"The court has recently gone to almost unprecedented lengths to reach down and reverse environmental cases even when there wasn't a split in circuits and the Bush administration wasn't seeking review," he added.

As happened to environmental cases during the last term, a decision on climate change would likely reach a divided outcome (Greenwire, June 25).

"These controversial environmental cases tend to be resolved in 5-4 decisions with [Justice Anthony] Kennedy as the swing vote," May said. "My best guess is that the court will issue a 5-4 ruling in favor of judicial restraint, either finding the political question doctrine or standing doctrine applies so as to avoid reaching the merits."

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