Cape & Islands News

Mirant Canal electric plant owners sued for causing global warming

   This tiny Alaskan village's fate is important to Cape Cod

This partial aerial of the threatened Native American village which will soon be under the ocean due to global warming can be viewed full size here. 

It will be too late when our shorefronts start to disappear

By Walter Brooks 

A tiny Inupiat Eskimo village of about 390 people about 625 miles northwest of Anchorage is built on an 8-mile barrier reef between the Chukchi Sea and Kivalina River is being destroyed by the melting ice fields which have protected it for centuries.A tiny Alaska Indian village, which is eroding into the Arctic Ocean, has sued two dozen oil, power and coal companies claiming that the amount of greenhouse gas they emit into the atmosphere is the cause of the global warming that is destroying their village.

One of the energy companies sued, Mirant Corp.,  operates our own power plant on the Cape Cod Canal.  It, along with the coal-fired Brayton Point power plant in Fall River, are the cause of much of the air pollution on Cape Cod and the resultant increase in lung diseases here because of our prevailing winds from the southwest.

The city of Kivalina Alaska (see maps on right)  and a federally recognized Native American tribe, the Alaska Native village of Kivalina, sued Exxon Mobil Corp. and BP PLC, seven other oil companies, 14 power companies and one coal company in a lawsuit filed in federal court in San Francisco.

We're all in this together

The lawsuit was filed on behalf of Kivalina by two nonprofit legal organizations — The Center on Race, Poverty & the Environment and the Native American Rights Fund — plus six law firms.

Reached by phone in Boston, one of the lawyers involved, Matt Pawa, said that while previous lawsuits have been filed seeking damages from global warming, but this is the first one that has a "discretely identifiable victim."  Attorney Pawa is also the lawyer for the 10,000 member Cape Cod environmental group, Clean Power Now.

"You can sue them one at a time or some subset of them"
  - Matt Pawa,  an adjunct professor of law at Boston College Law School, where he teaches Climate Law and Policy
Damage to this tiny village of Kivalina from global warming has been documented in official government reports by the Army Corps of Engineers and the General Accounting Office, Pawa said.  The Indain village is situated on a barrier reef (see inset in map above) not unlike manyshorelines on Cape Cod as well as and down the entire eastern seaboard.

The canal electric company is "a public nuisance"

The lawsuit invokes the federal common law of public nuisance, and every entity that contributes to the pollution problem harming Kivalina is liable, attorney Pawa said. "You can sue them one at a time or some subset of them," he said.

The lawsuit also accuses some of the defendants of a conspiracy to mislead the public regarding the causes and consequences of global warming. The suit was filed in California because that's where many of the defendants are located or do business, Pawa said.

Mr. Pawa's firm is well known for our role in launching Global Warming Litigation. They filed the first tort case against greenhouse gas polluters in 2004 in collaboration with eight state attorneys general and have been leaders in the field of global warming litigation 

"A conspiracy  entails 'an agreement to participate in an unlawful act or a lawful act in an unlawful means;' and thus always involves speech but not necessarily protected speech..."
   (See Q. & A. below)The oil companies named were BP American Inc., BP Products North America Inc., Chevron Corp., Chevron USA Inc., ConocoPhillips, Exxon Mobil, Royal Dutch Shell PLC and Shell Oil Co.

Also named were Peabody Energy Corp., a major coal producer, and power companies AES Corp., American Electric Power Co., American Electric Power Services Corp., DTE Energy Co., Duke Energy Corp., Dynegy Holdings Inc., Edison International, MidAmerican Energy Holdings Co., Mirant Corp., NRG Energy Inc., Pinnacle West Capital Corp., Reliant Energy Inc., The Southern Co. and Xcel Energy Inc.

An exclusive cc2day Q. & A. with Attorney Pawa

(1 ) Given the recent district-court failure of two similar actions by California and the northeastern states, why do you think this one will not be thrown out by the northern California district court?

Several answers:  (A) This is a case of unique strength because of the official reports from the U.S. Army Corps of Engineers and the Government Accountability Office finding that Kivalina is directly harmed by global warming and must relocate at an expense that could cost $400 million or more.  (B) While prior global warming tort cases have been dismissed under the political question doctrine, the issue of who pays for harm to victims of pollution is a core function of tort law; unlike the AEP cases now on appeal in the 2nd circuit, this case seeks monetary damages.  And significantly, the political question defense was one that the defendants in the AEP cases expressly disavowed, which is telling.  The political question issue is now in front of the Second and Ninth Circuit Courts of Appeals and is very much an open question; no appellate court has ever endorsed a political question dismissal in a global warming case and we remain optimistic that the Second and Ninth Circuits will find the political question to be no bar.  (C) this case includes a claim that certain defendants conspired to mislead the public about global warming.  There were no such conspiracy claims in the other cases.  Courts routinely decide such conspiracy claims.

Further, no court has ever said that public nuisance law does not encompass harms from global warming and in fact the kinds of harms to property and public welfare caused by global warming are classic public nuisance injuries.  See Cox v. City of Dallas, 256 F.3d 281, 291 (5th Cir. 2001) ("The theory of nuisance lends itself naturally to combating the harms created by environmental problems. . . . The deepest doctrinal roots of modern environmental law are found in principles of nuisance. . . . Nuisance actions have challenged virtually every major industrial and municipal activity which is today the subject of comprehensive environmental regulation.") (internal quotation omitted); Rich v. City of Benicia, 98 Cal. App. 3d 428, 435 (Cal. Ct. App. 1979) ("Unquestionably environmental concerns in general . . . involve preeminently important public rights.").

2) What precedents, if any, exist to bolster your claim of causality

-- that the specific emissions from these corporations are related to Kivalina's troubles?  As a factual matter, the specific emissions from the defendants combine with those of others to cause global warming.  Under public nuisance law, defendants are thus "contributors" to the public nuisance, which is all that the law requires for nuisance causation.

Cases/Precedents:  See, e.g., Cox, 256 F.3d at 292 n.19 ("nuisance liability at common law has been based on actions which 'contribute' to the creation of a nuisance"); City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256, 281 (E.D.N.Y. 2004) (same); Restatement (Second) of Torts § 840E ("the fact that other persons contribute to a nuisance is not a bar to the defendant's liability for his own contribution")

Classic triology of 19th Century water pollution cases finding liability against a subset of polluters who contended that though they were large sources, their effluent alone was not enough by itself to cause the water quality problem:  California v. Gold Run Ditch & Mining Co., 4 P. 1152 (Cal. 1884); Woodyear v. Schaefer, 57 Md. 1 (Md. 1881); The Lockwood Co. v. Lawrence, 77 Me. 297 (Me. 1885).

Modern monetary damages cases against polluters holding that each and every polluter is jointly liable for indivisible pollution to which s/he contributes:  See, e.g., Michie v. Great Lakes Steel Div., Nat'l Steel Corp., 495 F.2d 213 (6th Cir. 1974) (imposing joint and several liability in air pollution case); Velsicol Chem. Corp. v. Rowe, 543 S.W.2d 337 (Tenn. 1976).

Also, in the federal Superfund statute, Congress purposely left a gap as to the joint and several liability/causation issue and authorized the courts to fill that gap by turning to the common law.  Federal courts have now been filling that gap for years with a federal common law doctrine of joint and several liability.  See, e.g., United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir. 1993) (adopting rule of United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808 (S.D. Ohio 1983)).

This fundamental principle of joint and several liability for an indivisible injury is not just a principle allocating damages liability but is an important causation principle:  See Restatement (Second) of Torts Section 433B(1): "Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff."   Section (2) then states: "Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor"

Do you consider the tobacco litigation a precedent?

Yes.

What are the similarities?

We allege in the complaint that certain of the defendants have engaged in a tobacco-like campaign to deceive the public about the facts and dangers of global warming.  As in the tobacco litigation, we are applying long-accepted principles of tort law to win recovery for victims who were harmed by what we contend to be defendants' unlawful conduct.  The defendants in the tobacco cases initially complained that the theories of liability were "novel" or "unprecedented," but courts nonetheless accepted that traditional tort liability principles applied in the field of tobacco litigation just as they do in any other area where the defendants' unlawful conduct harms a plaintiff.  We expect that the same will happen here.

3) In reference to the civil conspiracy to mislead -- even if the corporations were supporting misleading statements and advertising, isn't such speech protected by the first amendment?

No.  A conspiracy  entails "an agreement to participate in an unlawful act or a lawful act in an unlawful means;" and thus always involves speech but not necessarily protected speech..  In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F. Supp. 2d 593, 634 (S.D.N.Y. 2001) (denying defendants' motion to dismiss where "plaintiffs have alleged that defendants conspired to market a product they knew to be dangerous to the environment and intentionally failed to warn downstream handlers, government officials and the public as to the threat caused by MTBE").  The federal government's tobacco case survived a first amendment challenge.  United States v. Philip Morris USA, Inc., 337 F. Supp. 2d 15, 21 (D.D.C. 2004).