December 19, 2012 Articles

Climate Change Litigation: An Overview

Four cases reveal courts' reluctance to weigh in on the debate.

By M. Camila Tobon – December 19, 2012

Beginning in 2004, several public and private plaintiffs, likely frustrated with the slow pace or apparent shortcomings of legislative and agency action on the issue of climate change, brought lawsuits against various oil, energy, and auto-manufacturing corporations, arguing that those companies’ contributions to greenhouse-gas emissions constituted a public nuisance. Grounded in common law, these lawsuits sought either injunctive relief or money damages resulting from the effects of climate change. Eight years and four lawsuits later, however, plaintiffs have failed to overcome threshold motion practice. Although climate-change litigation is still pending, the Ninth Circuit’s recent decision in Native Village of Kivalina v. ExxonMobil Corp., which follows the Supreme Court’s 2011 decision inConnecticut v. American Electric Power Co., makes clear that the judiciary views the debate over control of greenhouse-gas emissions as more appropriately before the executive and legislative branches.

The four cases can broadly be viewed as falling into two groups. The first group involves state actors suing corporations for their contributions to greenhouse-gas emissions into the atmosphere. In one case, Connecticut v. American Electric Power Co., the plaintiffs sought injunctive relief—a cap on emissions with subsequent mandated reductions, while in the other case, California v. General Motors Corp., the plaintiffs sought money damages and a declaratory judgment for future expenses in connection with global climate change. The second group includes Comer v. Murphy Oil USA and Native Village of Kivalina v. ExxonMobil Corp., where the plaintiffs sought damages for specific events: Hurricane Katrina and the impending destruction of an Alaskan barrier reef, respectively. The common thread throughout all of the cases is the courts’ reluctance to weigh in on the climate-change debate whether because of a finding that the issues present non-justiciable political questions or because of a finding that congressional action has displaced federal common law.

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