Hester Q&A – Climate Change

June 6, 2013 -- The forum for future climate change lawsuits may shift to state courts in the wake of last month’s U.S. Supreme Court’s refusal to hear a federal nuisance claim filed by a tiny Alaskan village. It was the second federal climate change nuisance claim shot down by the federal courts in the past several months, and a clear signal to future claimants. The decision marked the end of the road for the years-long federal suit against major corporations filed by the Inuit residents of Kivalina who claimed greenhouse gases were threatening the village’s very existence. The suit claimed the emissions were melting the winter pack ice that protects the village from erosion and ultimately submersion.  The high court’s refusal to hear the case means the appeals court ruling in favor of the defendants stands and effectively forces attorneys for future tort claims to formulate new strategies. Professor Tracy Hester takes a closer look at the decision and its likely aftermath.

 

Q.)  What is the effect of this Supreme Court decision?

Most immediately, it brings the Inuit tribe’s claim in federal court to a close.  More broadly, it signals the end for other climate tort lawsuits using federal common law nuisance claims.

Q.)  Is this the end of the line for residents of Kivalina?

In federal court, yes.  The U.S. Supreme Court was the last avenue of appeal for Kivalina to overturn the Ninth Circuit’s decision to dismiss their claim, so they have no other federal court open to them. It can, however, pursue its claim in Alaska state courts.

Q.)  What path did the suit take to the high court and why was this case unique among climate change lawsuits?

This case offered a narrow claim that carefully sought limited relief – namely, the villagers wanted to recover only the cost of relocating the village rather than large scale awards for global damages from climate change.  As a result, it offered a relatively low-stakes setting to test a high-stakes legal principle – whether corporate defendants could face liability under federal common law for their alleged contributions to climate change.  Other tort cases seeking broader damages or sweeping limits on greenhouse gas emissions will face even steeper challenges in federal courts.

Q.)  What lessons might future claimants learn from this suit?

Simply put, the federal courts have offered only mixed relief to climate change plaintiffs.  While two different federal appellate courts have given preliminary support to these claims, every federal trial court has dismissed the lawsuits and the U.S. Supreme Court has sharply limited any climate tort actions possible under federal common law.  Future lawsuits will need to seek new theories or new courtrooms.

Q.)  What is your prediction for strategy on future climate change lawsuits?

If climate change nuisance litigation continues, it will likely proceed in state courts under state laws rather than federal courts.  The Ninth Circuit expressly allowed the village of Kivalina to refile its lawsuit in Alaskan courts under state laws, and the U.S. Supreme Court’s unwillingness to hear their appeal doesn’t affect that opening.  Other federal climate nuisance lawsuits also have raised the possibility of parallel state law claims and actions.  Rather than a handful of large strategic climate lawsuits before a small number of federal courts, the future of climate change torts may involve a larger number of smaller lawsuits in multiple state courts under varying state laws.  The next legal battles in this new conflict will, as a result, quickly center on whether federal law preempts those state claims.

To schedule a media interview with Professor Hester, contact Carrie Criado, Executive Director of Communications and Marketing, 713-743-2184, cacriado@central.uh.edu; or John T. Kling, Communications Manager, 713-743-8298, jtkling@central.uh.edu.