Brief in Support of Industry Appeal May Change Debate on Private Right of Action For Climate Change Damages ... At least in the Courts
What has initially appeared to be a long litigation road to the answer of whether individuals have a private right of action to sue for climate change damages, may not be such a long road after all. Obama Admin Urges Supreme Court to Vacate Greenhouse Gas 'Nuisance' Ruling. For some time, there appeared to be a 2-1 lead for advocates of a private right of action for climate change damages in light of the Second Circuit’s decision in AEP v. Connecticut and the Fifth Circuit decision in Comer v. Murphy to allow such claims against the Ninth Circuit district court decision in Native Village of Kivalina v. Exxon Mobil to dismiss such actions. But how quickly things can change. After granting a rehearing en banc, which automatically vacated the panel decision allowing the private right of action, the Fifth Circuit dismissed the district court appeal after it lost quorum due to a disqualified judge. Thus, only the AEP v. Connecticut Second Circuit decision remains in favor of a private right of action.
Yesterday, in a brief filed on behalf of the Tennessee Valley Authority, the acting United States Solicitor General agreed with the defendants in AEP v. Connecticut, stating that the U.S. EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim. This position clearly supports allowing the EPA, and the lawsuits against the EPA, to set the tone and pace of climate change regulation, but also brings the preemption, or displacement as some are calling it, versus tort claims debate experienced in other areas of mass torts to the environmental field. It is hoped that the Supreme Court will take up this issue once again sooner (as in this Fall) rather than later.
It is interesting to note that one of the administration’s recent Supreme Court appointee’s, Sonia Sotomayor, served on the panel but did not sign the decision issued by the Second Circuit in AEP. Interesting indeed.
