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It’s old news that public nuisance theories increasingly are pleaded in an attempt to impose liability on product sellers when more traditional products liability theories would not work. See, e.g., J. Russell Jackson, “Public Nuisance Theories,” NLJ, May 16, 2005, at 12. Many � but certainly not all � courts confronted with such attempts have refused the invitation to extend public nuisance theory beyond its historic property-based origins and into the realm of products liability. Two recent federal district court decisions have wrestled with an even more novel use of the public nuisance theory: the attempt to impose on product sellers and raw material and energy suppliers costs allegedly attributable to global warming. In both instances, the courts have concluded that these suits ask the judiciary to do something it cannot do � namely, exercise legislative and executive power to establish environmental policy through common law judgments. Lawsuit over Hurricane Katrina is dismissed In Comer v. Murphy Oil U.S.A, No. 1:05CV436-LG-RHW (S.D. Miss.), the plaintiffs brought public nuisance and unjust enrichment claims against a host of coal, oil and energy companies, claiming that their carbon emissions contributed to global warming, which, in turn, caused or intensified Hurricane Katrina. The plaintiffs sought damages for property damage and other losses they suffered in Hurricane Katrina. The defendants moved to dismiss, making two primary arguments, both of which were fundamentally based on the separation of powers between branches of government. First, they argued that the plaintiffs lacked Article III standing to bring their lawsuit because their injuries were not plausibly traceable to the defendants’ alleged conduct in selling lawful materials. The doctrine of standing, of course, exists to ensure that courts are adjudicating live disputes between parties and not issuing advisory opinions. Second, the defendants argued that the underlying issues that would have to be adjudicated in the suit � such as what was an unreasonable level of otherwise lawful emissions � were political questions that were not within the institutional capacity of the courts to adjudicate. The plaintiffs countered that their burden was particularly low in opposing the motion to dismiss, and that so long as the injury to the plaintiffs was foreseeable to the defendants, their injuries were sufficient to confer standing no matter how many links in the causal chain might exist. The plaintiffs urged that they were entitled to discovery and a jury verdict deciding whether their injuries were caused by the defendants’ conduct. As for the “political question” argument, the plaintiffs suggested that adjudicating a common law claim for damages did not limit or invade the power of Congress or the executive branch, but instead fell squarely within the ordinary role of federal courts. The defendants, they said, were blurring the line between a simple damages case and national energy and environmental policy. The court began its analysis by acknowledging the importance of global warming and the need for something to be done about it. Transcript of Record at 35 (Aug. 30, 2007). Nevertheless, the court found that the plaintiffs did not have standing: “[A]ll of us are responsible for the emission of CO2 and ultimately greenhouse gases which cause global warming… But I do not think that under our system of jurisprudence that is attributable or traceable to these individual defendants but…are instead injuries which are attributable to a larger group that are not before this Court, not only within this nation but outside of our jurisdictional boundaries as well.” Id. at 36. In analyzing the political-question argument, the court performed independent research and noted many states’ actions as evidence that the task of setting global warming policy was one that the court was ill-equipped to handle: “It is a legitimate debate. It is an important debate, but it is a debate which simply has no place in the court, until such time as Congress enacts legislation which sets appropriate standards by which this Court can measure conduct… It is clear from the complaint and… the arguments here today that what you are asking this Court to do is what Baker v. Carr [369 U.S. 186 (1962)] told me not to do, and that is to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is clearly nonjudicial. Adjudication of the plaintiffs’ claims in this case would necessitate the formulation of standards dictating, for example, the amount of greenhouse gas emissions that would be excessive and the scientific and policy reasons behind those standards. These policy decisions are best left to the executive and to the legislative branches of government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.” Id. at 39-40. The court distinguished the recent U.S. Supreme Court decision in global warming litigation, Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007). There, certain states had sued the EPA, seeking to force it to initiate a rulemaking to regulate greenhouse gas emissions under the Clean Air Act. In Comer, the court described Massachusetts v. EPA as a suit in which the court was merely asked to require the EPA to do its job. The Comer complaint, in contrast, directly asked the court “to attribute fault to these defendants under standards that as of yet do not exist.” Transcript of Record at 39-40. Massachusetts v. EPA also played a significant role in a federal court’s recent dismissal of California’s global warming lawsuit against the automobile industry in People v. General Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Calif. Sept. 17, 2007). There, the state of California had sued automakers for damages allegedly attributable to global warming, which in turn were allegedly caused by emissions from cars lawfully sold in California and throughout the world. The state asserted legal theories of federal common law public nuisance and, in the alternative, public nuisance under California law. The power to bring public nuisance actions typically is vested in a state, as opposed to private individuals who must satisfy more onerous standing requirements to assert such claims. In that sense, the plaintiff in General Motors � the state � was a more typical plaintiff than were the ones in Comer, and standing presented less of an issue in General Motors. Instead, the political-question problem was central to the court’s analysis. Also using the Baker v. Carr factors, the court in General Motors held that California’s complaint presented a nonjusticiable political issue because it was impossible to decide the case without making an initial policy determination of a kind clearly for nonjudicial discretion; there was a textually demonstrable constitutional commitment of the issue to a coordinate political department; and there is a lack of judicially discoverable standards by which to resolve the plaintiff’s claim. With respect to the first holding, the court recounted the history of executive and legislative branch consideration of the global warming problem, including the current administration’s refusal to adopt binding emissions standards unilaterally so as to encourage key developing countries to reduce the greenhouse gas intensity of their economies. In doing so, the court relied heavily on Connecticut v. American Electric Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), which dismissed a similar global warming public nuisance suit brought by various state attorneys general. That suit had sought equitable relief. But as the General Motors court recognized, whether the state sought damages or abatement of the nuisance was not a meaningful distinction: “[R]egardless of the relief sought, the Court is left to make an initial decision as to what is unreasonable in the context of carbon dioxide emissions . . . .Just as in [ American Electric], the adjudication of Plaintiff’s claim would require the court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development. The balancing of those competing interests is the type of initial policy determination to be made by the political branches, and not this Court.” 2007 WL 2726871, at *8. The court found further support for its conclusion from the fact that both the Clean Air Act and the Energy Policy and Conservation Act committed certain standard-setting to the federal government and pre-empted state regulation. And it read the Supreme Court’s decision in Massachusetts v. EPA as bolstering its conclusion that although “States have ‘surrendered’ to the federal government their right to engage in certain forms of regulations and therefore may have standing in certain circumstances to challenge those regulations,” they cannot use common law to force courts to engage in such regulation in the first instance. Id. at *12. Court refused to intrude on federal political branches The court also held that California’s suit would force the court to intrude into interstate commerce, which the Constitution textually commits to Congress, and foreign policy, which is textually committed primarily to the executive branch. In addition, the court held that there were no judicially manageable standards by which to adjudicate the public nuisance claim: “This Court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or in determining who should bear the costs associated with the global climate change that admittedly result from multiple sources around the globe.” Id. at *15. Both Comer and General Motors demonstrate the judiciary’s increasing reluctance to allow litigants to use ill-defined common law causes of action to effect policy choices that should come from the political branches in the first instance. J. Russell Jackson is a partner in the complex mass torts group at New York’s Skadden, Arps, Slate, Meagher & Flom and teaches products liability as an adjunct professor at Brooklyn Law School.

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