Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update

Dean Reuter:                   Welcome to the Federalist Societies Practice Group podcast. The following podcast, hosted by the Federalist Societies Environmental Law and Property Rights practice group, was recorded on a Tuesday, July 3rd 2018 during a live telephone conference call, held exclusively for Federalist Society members.

Dean Reuter:                   Welcome to the Practice Group's telephone conference call, as today we discuss the status of some municipal law suits filed against fossil fuel producers. I'm Dean Reuter, Vice President, General Counsel, Director of Practice Groups here at the Federalist Society. Please note that all expressions of opinion are those of the expert on today's call. Also this call is being recorded for use as a podcast in the future and likely be transcribed.

Dean Reuter:                   We're very pleased to welcome back to teleforum, returning guest Professor Donald Kochan. He's the Parker S Kennedy professor in law and associate Dean for Research and Faculty Development at the Chapman University School of Law. He has also been participating in his debate in writing that is unfolding on the Federalist Society's blog under the tag Originally Speaking. He and several other folks are, as I mentioned, debating this or discussing this in writing. I direct your attention to that and urge you to check out that debate online. I mentioned it's unfolding, so there'll be more iterations of that going forward.

Dean Reuter:                   But today, we have Donald Kochan covering both sides of the argument. Thank you for that, Professor Kochan. With that, the floor is yours.

Donald Kochan:               Thank you Dean. And thank you to the Federalist Society for hosting this teleforum on the Municipality Climate Change litigation. Particularly those points of litigation regarding public nuisance lawsuits.

Donald Kochan:               With increasing frequency, those seeing to influence climate change policy have been turning to presenting innovative legal theories in court cases. One concern is that courts could become the playground of political debates or the manufacturer's policy decisions. Another view is that the courts could be, in fact a good venue for officiating and understanding better where liabilities should attach for such claims. These were the principles debated in the June 25th order from federal judge William Alsup of the US District Court for the Northern District of California. Dismissing the plaintiff municipality's climate change related public nuisance case in city of Oakland vs. BP.

Donald Kochan:               That order and its ultimate ruling can be paraphrased as describing these cases novel and unprecedented tort lawsuits for climate change that would enlarge the judicial power beyond its limits and interfere with the proper powers of legislative and executive branches to set or even choose not to set policy on particular matters of climate change and its alleviation and the alleviation of the harms caused.

Donald Kochan:               That order is the primary subject of today's litigation update. I, like judge Alsup in his opinion believe that climate change is real and that we should have serious robust debates on how to address it. The question is whether or not the court room is the place to do that. Judge Alsup's June 25th opinion stressed the point that it was not. In his order, he acknowledged the reality of climate change and its impacts, but the opinion starkly reminded us that in the proper assessment of the judicial role in these cases "this issue is not over science". The judge focused his opinion on the proper role of the courts in a system of separated powers in the face of a theory of liability that the court called "breathtaking" in scope.

Donald Kochan:               Separation of powers in deference to the politic branches compelled dismissal. It was the first major ruling across a spattering of similar lawsuits across the country. This brief presentation will provide a litigation update on climate change in the courts, with particular emphasis on the municipality suits being brought with public nuisance related theories of liability for climate change and its impacts. The presentation's main focus will be to summarize the details of last week's order from judge Alsup and the case be dismissed have been brought by the cities of Oakland and San Francisco against BP, Chevron, ConocoPhillips, Exxon Mobile, Royal Dutch Shell and others. But before we get to that specific decision, some background is in order on the various lawsuits filed in multiple courts as well as on what public nuisance means as a matter of legal doctrine.

Donald Kochan:               Starting around 2017, we saw the rollout of a number of public nuisance lawsuits that are part of a national climate change strategy by environmental groups in the courts. Teeming with governmental entities and plaintiffs attorneys to attempt to induce the courts to accept new theories to assign tort liability for climate change impacts, particularly to private energy corporations. Brought mainly by cities and counties, these lawsuits allege responsibility by these energy companies for billions of dollars based on decades of those companies past lawful behavior. There are other cases in federal and state courts that inject climate change policy into the court under other novel theories. And those are all part of this story. But those other categories of cases are largely beyond the scope of today's main presentation.

Donald Kochan:               Beyond the suit just dismissed last week, other similar climate change public nuisance lawsuits are still pending in state and federal courts in California, including law suits by San Mateo county, city of Richmond, county of Santa Cruz and elsewhere in New York, Colorado, including in the cities of Boulder, Boulder county and San Miguel county, Washington state. And despite the dismissal in the northern district of California on similar theories last week, one filed just yesterday by the Rhode Island attorney general and state court. The complaints vary, but most focus on assertions of liability for climate change impacts and for response cost, based on common law claims of public nuisance or trespass. The complaints paint the future in bleak terms where sea levels rise and other climate disruptions signal impending catastrophic harms and blame these energy companies for contributing to them.

Donald Kochan:               To accept the plaintiff's claims in each of these cases, courts should need to be convinced to reject traditional limits on legal liability, expand doctrines and thereafter hold these companies liable. The plaintiffs are asking to receive compensation designed to abate the claim negative effects of climate change, to which to companies are alleged to have contributed to some degree. There are a number of concerns raised regarding traditional limits on liabilities that are in the briefing in these cases. For example, the lawsuits are claimed to be based on the attenuated theories of causation and traceability. They seek to hold a few companies liable for legal activities reportedly contributed in some unidentifiable degree to the global climate change phenomenon, to which an endless number of people have seemingly likewise contributed.

Donald Kochan:               On the other side, of course, is the argument that the fact that there are others who may have contributed as well, does not eliminate the need for these particular defendants to be held liable. Another concern is regarding widely disbursed harms with countless contributors and with little ability to allocate responsibility or contribution amounts between them. But these are not the kinds of concerns fit to be resolved in judicial proceedings. And instead, such allocation involves complex policy decisions that cannot be resolved in the courts.

Donald Kochan:               On the other hand, individuals claim that the courts oftentimes in public nuisance cases have multiple defendants and must allocate responsibility. Ultimately, there's a question of what is the province of the legislature, what is the province of the courts and who should set perspective roles to address larger matters of social order. Courts are not fit to do so, is the conclusion at the center of judge Alsup's opinion last week, as I'll explain more in just a moment.

Donald Kochan:               Before landing there, one question you might ask is why these advocates sought out the courts. Climate change advocates are undoubtedly frustrated that they cannot succeed in getting legislation or regulation that is broad enough to satisfy their policy preferences. So with the support from lawyers who see the possibility of contributing to the advancement of these claims, climate change advocacy is increasingly moving to the courts. As is often the case, law suits are seen as one tool in a policy advocates arsenal and often turned to when the political branches seem not to be delivering, as well or as fast as those seeking social change would like. If you can get access to court, you might get a judge to do what a legislature cannot because of gridlock or will not because of disagreement or alternative priorities accomplished for your preference.

Donald Kochan:               That is one theory of appropriate judicial relief, overcoming gridlock. Gridlock in Democratically elected bodies can get very frustrating. But on the other side is the argument that gridlock cannot be an excuse for asking the courts to do what only legislatures can or should do. The frustration with one set of institutions cannot be the justification for asking other institutions to take over in the process and eliminate what makes them special and uniquely limited. In our system of separation of powers, we have divided responsibilities.

Donald Kochan:               So what is a public nuisance and what is being debated as to the basic merits of the claim? Nuisance law is about persons who unreasonably interfere with the use and enjoyment of another's property. The prototypical private nuisance lawsuit is your neighbor playing their music too loud at all hours of the night or emitting foul odors that give you headaches. Each action reaching unreasonable levels and with limited social utility in order to constitute a nuisance. The prototypical public nuisance case involves a party's actions that cause a harm to the public generally, such as wrecking something that blocks access to the public along a public road. Courts have developed several tests to identify the threshold level of harm, balanced against the utility of the action to identify whether any particular acts rising to the level to be called a nuisance because it rises to the level of a certain unreasonable miss in the behavior and effect.

Donald Kochan:               Nuisance has always been a doctrine about weighing costs and benefits of activities and public nuisance is especially involved in deciding the overall impact on the public, including the overall hard and the overall public gains from the particular action which is claimed to give rise to liability.

Donald Kochan:               Conduct that is lawful is seldom unreasonable and by definition, seldom unlawful. Furthermore, the hurdles for establishing the ailments of a traditional public nuisance claim are purposely high, because it is usually seen as an extreme remedy that involves policy decisions, public policy decisions. Part of the reason why it's called public nuisance is that it involves something which is of general concern to the general public. And those are the kinds of things that we often see committed to the legislative branch.

Donald Kochan:               Here the municipality plaintiffs seek to instead have those directed toward the courts. Public nuisance claims are very rarely brought and even more seldom won. At the very least, public nuisance lawsuits are certainly not intended to allow a remedy now presently observable, undesirable conditions by retroactively identifying the standards that should have been imposed, had we only known. In that sense, public nuisance is not meant to set perspective new duties, but instead to recognize past duties.

Donald Kochan:               Public nuisance is a tort designed to contemporaneously address existing known and knowable harms traceable to clearly identifiable sources. Moreover, there must be some duty established to which the defendant must have been adhering and some proof that those actors deviated from that duty. Certainly hard to do when the defendants you choose were engaging in lawful activity. Instead you would need to reach a higher level that somehow it was not lawful at the time. Or it was known to be a nuisance at the time.

Donald Kochan:               Because the energy companies were conducting their lawful businesses, they make a claim that this threshold cannot be met. Furthermore, even if you find a defendant who might have done acts capable of causing harm, a plaintiff traditionally must prove specifically that the defendant they are suing actually caused identifiable and applicable harm. That burden includes tracing the cause of the harm back to the particular acts of a defendant. It cannot simply target someone for responsibility without showing that level of contribution.

Donald Kochan:               As the order by judge Alsup explains, it is hard to say that something that has been encouraged, like energy production for decades, indeed centuries by state and federal policy makers, as well as other nations is suddenly a public nuisance. That doesn't mean it can't be regulated or that public policy couldn't change. It instead, according to judge Alsup, is a matter of where that change should occur.

Donald Kochan:               Consider our history with air pollution of the late 1960s and 1970s. Once we all realized that the air was getting too polluted across the United State, and particularly bad in places like California, we engaged in a legislative debate about how we might change standards and how we might impose future regulations to prevent harm and to restore air quality. When we decided we wanted higher standards, we then used normal legislative processes to create them. In normal regulatory processes to impose them. We do not resort to legitimizing regulation by litigation to get more than what was possible through legislative means. The clean air act and other pieces of legislation and the regulations that followed were the result of intense policy discussions, legislative debates and yes, compromise between competing economic and environmental values. As a society, we did not decide that any deficiencies we saw and prospective remedies made it wise or even legitimate to open to courthouse doors to law suits against everyone who might have been a lawful past contributor to the air quality conditions we now disliked.

Donald Kochan:               That history, although not explicitly referenced in great detail in judge Alsup's opinion, certainly lingers in the background. And is precisely what could be argued courts should do with climate change issues today. New standards should be debated and policies made by legislation if they are necessary. Deputizing courts to create new law and fashion new standards of tort liability is a way to circumvent the legislative process or as an escape when we are unsatisfied with the speed or depth of the legislative process may not be appropriate. On the other hand, those arguing for the use of the courts believe that courts are designed to provide remedies for harms. If these harms are real, the courts should be open to them.

Donald Kochan:               The US Supreme Court however, honed in on these kinds of arguments in its 2011 decision in American Electric Power Company vs Connecticut, where it held that the clean air act and the overall regulatory scheme at the EPA "displaced common law public nuisance and other claims against carbon dioxide emitters as a matter of federal law." In other words, the US Supreme Court said, sure, we may in fact want to find new ways to accomplish the environmental cleanups that are necessary here and or address some of the environmental concerns. But the question is whether or not those decisions have already been committed to another branch of government such that the courts are not the appropriate place.

Donald Kochan:               The Supreme Court did not expressly rule that federal law preempted state law claims in the AEP decision, but it made clear that there was a federal choice to entrust the legislatures and not plaintiffs and attorneys to address these climate change concerns. Judge Alsup's dismissal order focused on this and other displacement concepts.

Donald Kochan:               Now we turn to the opinion for the remaining few minutes here. The June 25th opinion Oakland vs. BP was highly skeptical of the public nuisance claims brought by the plaintiff on the merits of what it takes to be a public nuisance. But the court ultimately resolved the case on theories of displacement, where executive and legislative branch powers, prerogatives, and actions in the area of climate change displaced the judiciary and private plaintiffs from bringing claims better resolved in those political branches. In other words, the courts are not the place and instead that the executive and legislative branch occupation of these areas means that the court should stay out.

Donald Kochan:               Similarly, the displacement claim also are articulate that the judiciary must tread lightly when its court orders could displace the discretion of the political branches to act effectively in areas largely committed to their expertise and discretion.

Donald Kochan:               A few brief words on the court statements on the persuasiveness of the public nuisance claims and then I'll turn to the doctrines that lead to dismissal based on displacement.

Donald Kochan:               Before describing the allegations against the energy company defendants, the first three pages of the 16 page slip opinion outlined the basic history of the science identifying climate change and its impacts. The court makes clear that climate change is real and proven. In fact, from the opening page of its analysis in page 6 of the slip opinion, the court states "this issue is not over science." All parties agree that fossil fuels have lead to global warming and ocean rise and will continue to do so. The judge explained that this was a matter of what's appropriate for the judiciary, not what is at issue in the debate over climate change as a reality.

Donald Kochan:               The judge characterized the complaint and what the plaintiffs were trying to prove in this breathtaking theory. "Plaintiffs theory to repeat is that defendant's sale of fossil fuels leads to their eventual combustion, which leads to more carbon dioxide in the atmosphere, which leads to more global warming and consequent ocean rise." The court went on to explain that as I stated before, "the plaintiff's theory is breathtaking. It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew the combustion of fossil fuels contributed to the phenomenon of global warming. Anyone who supplied fossil fuels with knowledge of the problem would be liable"

Donald Kochan:               So the court stressed that this has a broad, that the plaintiffs are painting with a broad brush here and it would in fact reach far more than just the defendants at issue, if the court were to find that these kind of activities constituted a public nuisance. So what does it take to constitute a public nuisance. The court focused on the restatement of the law on nuisance. The restatement second of torts, particularly section 821 of the restatement, in which a public nuisance is a "unreasonable interference with the right common to the general public." He went on to explain that what that means is that you must have proof that a defendant's activity is unreasonably interfered with the use and enjoyment of a public right and therefore causes the public at large substantial and widespread harm.

Donald Kochan:               The court stressed "no plaintiff has ever succeeded in bringing a nuisance claim based on global warming" and although the court did not resolve the issue of whether a public nuisance claim could be satisfied here ... and that's very important the court did not resolve that issue. Instead resolving on the displacement claims as mentioned before. The court did have high skepticism about the validity of the public nuisance claim, should the court have needed to reach it. The court explained that in order to establish a public nuisance, you must go through the restatement balancing test, which means that you have to weigh the gravity of the harm against the utility of the conduct. They went on to describe what it takes in that analysis, again quoting from the commentary in the restatement. "In determining whether the gravity of the interference with the public right outweighs the utility of the actor's conduct. It is necessary to consider the extent and character of the interference, the social value that the law attaches to it, the character of the locality involved and the burden of avoiding the harm placed upon members of the public.

Donald Kochan:               The court explained that when you're looking at all of those things, you're going to need to say, "Well, sure, climate change is real, the impacts are real and the impacts are quite serious." The court explained that it believed all of those things. But then it continued "against that negative. We must weigh this positive. Our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible." The court is recognizing there that there are substantial benefits to be weighed against the harms that would be here.

Donald Kochan:               In addition, the court has a concluding statement at the end of its discussion of public nuisance, in which it really talks about this retroactive liability concern stating, "is it really fair in light of those-

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Donald Kochan:               ... with liability concern. Stating, "Is it really fair in light of those benefits, to say that the sale of fossil fuels was unreasonable?" It then concludes, "This order recognizes, but does not resolve these questions." So the order does not, in fact, resolve the issue of public nuisance or whether or not any of these claims can satisfy public nuisance doctrine, whether or not the plaintiffs can be successful at proving a public nuisance claim if the court were allowed to hear it. What the court does decide, however, is that, in its final set of pages, is that overall the courts are not the appropriate place for deciding these sensitive and complex policy concerns.

Donald Kochan:               The court, in its displacement discussion, starts with the idea that was expressed in the AEP versus Connecticut decision I quoted earlier, that Congress has vested the EPA with this problem and given it plenty of authority to solve the problem at the point of emissions. It also goes on to say that the fact that companies are being sued, not for their own emissions but for someone else's does not change the matter, nor does it matter that this is more than congress has regulatory authority over.

Donald Kochan:               One of the arguments that the plaintiffs was making here was that, well that may have been true in AEP, but because the harms here and the sales of energy affect international commerce, which is beyond the scope of some of congresses power to regulate, and beyond EPA's power to regulate, that this makes AEP distinguishable. The court rejected that, saying instead that although EPA and congressional jurisdiction might make a difference in the international commerce realm, it raises all new concerns of displacement regarding separation of powers as it relates to foreign policy. In it's final sections, it explains that the claims are still foreclosed, "By the need for the federal courts to defer to the legislative and executive branches when it comes to international problems."

Donald Kochan:               The court goes on to explain that the supreme court has been given caution, strong caution about creating common law causes of action that might in fact interfere with the ability to conduct foreign affairs. It quotes the energy policy act to explain that over time we've set policy decisions in different directions. It said at one point not long ago, "The problem wasn't too much oil but too little." International policy emphasized the urgency of reducing dependence on foreign oil. Those kinds of sensitive back and forth decisions the court says belong in the executive branch. And if the courts were to start claiming that some of these things were unlawful behaviors and thereby the fact of setting energy policy, they would be interfering of the prerogatives of the legislative and executive to explain these things.

Donald Kochan:               The court continued and explained that the presumption against extra territorial application of our laws also meant that we should not be in the court system. The court should be reluctant to create any liability which would attach more broadly in other nations, especially where these acts are "Lawful in every nation," that the complaints allege are indeed wrongs. One of the most critical quotations in the opinion comes on page 12 of the slip opinion where the court says quote, "This order fully accepts the vast scientific consensus that combustion of fossil fuels maturely increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerates sea level rise. The questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our executive, and at least the senate. Using suits in various United States judicial districts, regarding conduct worldwide are far less likely to solve the problem and indeed could interfere with reaching a worldwide consensus."

Donald Kochan:               The court was concerned that in fact we would be tying the hands of the legislative and executive branches to set policy, and to negotiate policy, worldwide policy agreements if in fact the judiciary were to instead engage in policy setting itself. Therefore, the court ultimately determines that it is not the place of the court to do this, then it will "Stay its hand in favor of solutions by legislative and executive branches." Overall, the Northern district's ruling is likely to have an impact on similar pending lawsuits, undoubtedly such, pressment regarding weather and how the courts can be accessed to bring climate change associated liability claims, and will be tested in the continuing cases brought already, and those likely still to be brought by municipalities and others in the coming future. Thank you for your time, I look forward to your questions.

Dean Reuter:                   Well thank you, Professor Koshen, this is Dean again. Let's open the floor to questions right away. In a moment we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question for our guest, push the star button and then the pound button on your telephone. Once again, if you have a question, push the star button then the pound button on your telephone. We've got a fair number of people on the eve of our national holiday. We'll begin with one question, so let's turn to our first question momentarily. As I said, if you would like to ask a question, push the start button and then the pound button on your telephone.

Dean Reuter:                   And professor Koshen, I do have one question I wanted to ask if I could, to get us started. My understanding is that the municipalities have taken perhaps a different view, less fatalistic view of climate change in some of their financial filings and disclosures that might put them in a bit of a jam, contradict their arguments and litigation. I'm wondering if you want to address that at all before we turn to our audience?

Donald Kochan:               Sure. So one of the concerns for the plaintiffs, or it was something the plaintiffs had to address is the issue of contradictory statements. For example, San Francisco claimed in this lawsuit that's recently been dismissed, their grave climate change harms already present, that there are certain harms coming in the future, that there will billions in projected losses. The city made all these statements and litigation in it's complaint, which made it sound like the city was going to be on the hook for substantial response costs, and substantial adjustment costs. At the same time however, we see San Francisco and other, I'm just giving one example here, their 2017 general obligation bond state, "We are unable to predict whether sea level rise or other impacts of climate change or flooding from a major storm will occur, when they may occur, and if any such events occur, whether they will have a material adverse effect on the business operations or financial condition of the city and the local economy."

Donald Kochan:               So at one point, and you can find a number of examples, several people have written about this, you can find a number of examples of this juxtaposition. Litigation position is dire, and response cost present and likely to increase. The bond issuance statements saying it's uncertain and we're not actually sure, so you should invest in our bonds.

Dean Reuter:                   That's interesting. And I know the court didn't get to the [inaudible 00:27:57], but did the court take notice of that and address that at all?

Donald Kochan:               The court did not address that and this opinion. I wouldn't be surprise if it were to come up in other opinions because it does become a credibility issue. I think in part the court's not doing this because it asks for briefing on the history and science of climate change and kind of came to it's own opinion at the beginning. So in a way it does address this, it just says, look the harm is real. But that even recognizing the harm being eal doesn't justify judicial intrusion into what is the province of the legislative and executive.

Dean Reuter:                   Right. We've got two callers with questions. If you'd like to join the que, push the star button and the pond button on your telephone. For now let's take our first call of the day.

Michael Rossman:          Hello, this is Michael Rossman with the center for individual rights. I have a question about jurisdiction and whether it was discussed at all in the opinion, both subject matter jurisdiction in a sense of, I assume it was some kind of diversity jurisdiction. And your description of the public nuisance tort also suggests a number of case or controversy issues as well. Maybe they were resolved by Massachusetts verses EPA, or maybe not. I would just be curious as to whether or not there was any discussion of these issues in the court's opinion.

Donald Kochan:               So not in the most recent order. The jurisdictional issues are been bandied about in a number of these cases, some have been sent back down to state court because they raise state law causes of action. This case was retained at the federal level, but the court explained that the court would have to apply federal common law of public nuisance in the case, and there was no corresponding state law claim that it would continue to consider. It ends this opinion saying or resolution to the federal common law claims is also enough to show why we cannot entertain the state law claims, although curiously not really going into any kind of preemption analysis.

Donald Kochan:               So the jurisdictional issue here is one of the federal common law of public nuisance in this particular case. Other cases have found that the complaints actually raise the state common law nuisance and are more appropriately resolved in state court in that sense. The Massachusetts verses EPA stuff I've not seen get resolved in any decisions yet in any of these cases, but I would suspect that you will continue to see some justifiability concerns raised. And certainly if it had needed to get to that point and had not been resolved on the displacement issues, perhaps the court would have reached them here.

Michael Rossman:          Well I'm just curious about the order in which they go. I would have though as a displacement issue, one of subject matter jurisdiction equivalent to whether or not there's diversity jurisdiction or there's a case or controversy.

Donald Kochan:               The court is not explicit as to where it's placing that. It does hint that the courts lack jurisdiction in light of ... and the court here is reading AEP as determining that first you cannot entertain the creation or expansion of a common law claim, and second that the court ultimately does not have jurisdiction in light of what seems like a claim of ... they're reading AEP as saying that the supreme court has identified the political branches as having exclusive jurisdiction in these areas, and therefore they do not have what it seems like subject matter jurisdiction. But the opinion itself is not going into that level of detail. There's a hint of prudential kind of dismissal here when you think about the foreign affairs power discussion. But I think the courts certainly could have been clearer on where it was placing its basis for this theory of displacement.

Michael Rossman:          Thank you.

Dean Reuter:                   Very good. We have one question pending. If you'd like to ask a question, push the star button then the pound button on your telephone after this next question. Our lines will be wide open.

Chris Garvey:                   I think the defendants conceded too much when they conceded that there's no reasonable doubt that man made carbon dioxide proposes a temperature increase.

Donald Kochan:               I think ultimately that the strong argument here was that taking climate change as a given, it still would be inappropriate to resolve levels of liability for it in the courts. And I think that that actually makes for a stronger opinion because it doesn't require a resolution or a debate on that particular issue to ultimately reach the court's holding.

Dean Reuter:                   Another call for questions. If you have a question, now's the time. Push the start button then the pound button on your telephone. While we're waiting to see if anybody else rings in, Professor Koshen let me ask you about how these cases or this case relates to, if at all, some of the tobacco litigation, lead paint, guns and ammo manufacturers, and even now upcoming it seems, suits against opioid manufacturers. Any response to that?

Donald Kochan:               Sure. I think in all of these you see a similar playbook. It is a frustration with the ability to change laws at the legislative level, a desire for remedies for those who seem to have been harmed by past actions, which we now have new information regarding the potential dangers of acting in such ways. And they all seek to create a level of retroactive responsibility and liability for acts that were universally, or at least widely considered not only lawful, but often times considered beneficial, or considered at least part of the norm. And so it's that request of the courts to take a stance, which really runs counter to our idea of courts providing relief for wrongs that were identified as wrongs, and violations of duty that were known to be duties at the time of the acts.

Donald Kochan:               You also see that there are substantial amounts of money involved in all of those claims that you mentioned, including these where here we now have billions of dollars, similarly high claims in tobacco and lead pain and elsewhere, where it is seen that there are deep pockets, not particularly sympathetic, at least not particularly sympathetic in certain quarters of society that might be either forced to pay as a result of judgements, or quite often the case is induced to pay in settlements in order to avoid some of the bad press and other impacts on their overall operations if such lawsuits linger for too long. And so the idea of creating leverage for settlements by filing lawsuits is at play in all of these cases as well.

Chris Garvey:                   Chris Garvey here. I haven't been muted, so I'm going to interject another point. I'm the libertarian candidate for attorney general of New York this year, and one of my campaign proposals is that if a water company is injecting fluoride into the water, I'm going to charge them with third degree assault because of the well documented damage that fluoride does to bodies and brains and nervous systems. That wouldn't be a nuisance and I wouldn't try to go after them for past conduct, I would simply threaten to charge them with assault for continuing to do damage now that we know more about this terrible poison that they're putting into the water, which I won a debate on back in 1950 something when I was in high school. So it's not nuisance, but it's an approach to pollution in the water supply that I think might work. Do you have any thoughts on that.

Donald Kochan:               I don't know the details of that at all. I do think that the law is meant to be sufficiently flexible to allow for liability for violations of clear duties. But the law also understands the system of separation of powers and the limited nature of torte liability also leaves some of the assessment of lability to the political branches and requires that we have some kind pf perspective law coming out of those branches because the judiciary can act.

Dean Reuter:                   Very good. We do have one question pending with a new caller, so we'll turn to that momentarily. I have a technical question about the nuisance torte. And I do believe one defense is the reasonableness of the defendant, and I'm wondering about a necessity defense, which arises in trespass. But is there any thinking in this field, that if fossil fuel stops producing, everyone will suffer and people will die actually, people on life support systems I suppose would ... I mean I suppose you could make arrangements somehow alternately. But you mentioned the industrial revolution was fueled literally by fossil fuels. Much of what's going on and much of the ability of these same municipalities to thrive is based on fossil fuels. Did that get mentioned by the court, is that a factor?

Donald Kochan:               Because the court did not go into a detailed application of the restatement's multifactor test, I think that it did not, well I know it did not go into that level of detail. Although hinting at the industrial revolution would open the door if it had gone further. Let me just talk for a moment about that test. It asks us to weigh the gravity of the harm verses the utility of the  defendant's conduct. The utility of the defendant's conduct is not-

PART 2 OF 3 ENDS [00:40:04]

Donald Kochan:               The validity of the defendants conduct. The utility of the defendants conduct is not limited to just how much does the ... Economically, how much does the energy industry contributed to economic growth. It in fact is something which the defendants can explain and did explain in their briefing that all of these things flow from the use of energy. From the emission and the necessary emissions in these industries that all of those kind of benefits can go into that calculus and their statements certainly contemplate that if an activity is beneficial in ways other than economic growth. For example, it is fueling the, as you said, fueling the vehicles to get to the hospitals that do the saving lives, et cetera, that you can work with experts on quantifying what is the overall betterment of society as a result of this activity and put that into this restatement balancing calculus. There's another way it comes in and the court does do this in an area of the decision, which I did not specifically mention and that is there's a, the restatement as it was amended has another section that says plaintiffs can succeed on bringing a nuisance claim even if the defendants activity, the benefits of the defendants activity outweigh the utility of the, or excuse me, outweigh the gravity of harm.

Donald Kochan:               So there's more benefit than harm. Even if the defendants win on sort of that first level of tests, plaintiffs still have a chance to win and get some relief if they can prove that they can still be paid and the beneficial activity can continue. In other words, it would not be infeasible for the activity to continue. They use a double negative in the restatement there. And basically it says if defendants can prove that it wouldn't be feasible to continue operating and it wouldn't be feasible to continue providing those benefits if they were forced to pay here the billions of dollars, then the plaintiff cannot win on this alternative sort of saving clause theory of the restatement. And the court here did in fact say that in its opinion, it ultimately determined that in these actions alone, two plaintiffs seek billions of dollars each in the form of an abatement fund, it seems a near certainty that judgements in favor of the plaintiffs who brought similar nuisance claims based on identical conduct, let alone those plaintiffs who have yet to file suit, but make a continuation of defendants fossil fuel production not feasible. And in the aggregate, ultimately that means that the plaintiffs would not win on that savings clause.

Donald Kochan:               I should mention one last thing, the savings clause also says that if the defendants were forced to pay in this suit as well as all similarly, if they were forced to pay all similarly situated plaintiffs who have brought or could bring similar suits, if they had to pay all of them, would they be able to continue operating? Would they be able to continue providing those benefits? If the answer's yes, then the plaintiffs have a chance to still win under public nuisance. If the answer's no, then this alternative to the balancing test would not weigh in the plaintiffs favor.

Dean Reuter:                   Fascinating. We do have one question pending. Let's take that call. But again, if you'd like to be added to the queue, push the star button then the pound button on your telephone. We've got nearly 15 minutes remaining.

Gary Wheaton:               Good afternoon, gentlemen. This is Gary Wheaton up in New Hampshire again. Sorry I call a lot but I try to wait until the end. But anyways, and this might be a tough question to answer because I think it's a minor issue maybe, not even an issue in the case. But did the judge expand or expound on his statement in his opinion on how this might work against the plaintiffs? Maybe bringing this into a court room wouldn't help the plaintiffs or however you mentioned it earlier in your statement. Wondering if you have any insight on that.

Donald Kochan:               So I don't know if he said anything about how it wouldn't help the plaintiffs. He did mention that it could hurt the plaintiffs cause. And that is that you may in fact eliminate some of the bargaining discretion that the legislator and executive would have in negotiating climate change agreements. And as a result, some of that give and take that's necessary in those negotiations would be eliminated if in fact you found that energy companies were liable. Not only for their actions in the United States, but also for their actions in some of these foreign nations who you're trying to negotiate with that you could in face stymie the ability for those kinds of international negotiations to be successful and I think he hints that the fact that those international negotiations are often seen as probably the better or best option for indeed addressing successfully a global problem and finding the kinds of global solutions that you need for a global problem. Something which a single district court can't do. So that was the interference with foreign affairs, the interference with the ability to engage in the give and take of foreign agreement negotiation were all at play.

Donald Kochan:               There's also a few hints in the decision that at points he says it would also eliminate in some ways the discretion for robust policy discussions to be successful at the legislative level. Even for domestic concerns.

Gary Wheaton:               You don't think that it had anything to do with the fact that they would have a difficult time producing real evidentiary or court legal evidence, that kind of thing, he didn't allude to that in any way, did he?

Donald Kochan:               Evidence of?

Gary Wheaton:               Well, you know, in other words, would they have to ... In a court of policy or policy and politics, you're evidence doesn't matter, right? So it's just persuasion. Where as in the court room your evidentiary standards are much higher. So we all know that global warming, for example, is an actual occurrence as well, so what kind of additional evidence would they need to provide that shows the fossil fuel percentage or elements in that, and can it be proven to a standard of courtroom? That wasn't part of the judge's thought process as far as you're concerned, correct?

Donald Kochan:               It was not determinative. There are points in time when the difficulty of establishing allocable liability to a few companies when it is a system or world wide contributors. I think the judge no doubt recognizes early on, even when he says the harm is real, he goes on to say that doesn't mean that we immediately know that these folks are liable or what percentage, how much they should be liable, what percentage of the liability should detach to these particular defendants when you have so many potential contributors and the disaggregation of the liability would be very difficult without applying some kind of joint and civil liability at the arrear or something. So I do think that the court recognizes early on in those first few pages of discussion that those levels of proof would require substantial effort and is all the more reason why it's the kind of problem that's not really meant for, or that courts, not meant for courts or that judges are not particularly good at doing. At least from a comparative institutional competency standpoint, legislatures and regulators are far better at handling those kinds of allocation contribution and ultimate limitation assessments.

Gary Wheaton:               Thank you very much. I'll let you guys go.

Dean Reuter:                   We've got eight minutes left. Let me make another call for questions. If you have a question push the star button then the pound button on your telephone. We do have another question, so let's check in with yet another caller.

Bill James:                        Hi. This is Bill James with JPods. And this is about the fact that we have a global warming, massive worldwide problem is really a federalism issue of the violation of the post roads restriction and ports restriction in the constitution where the federal government mandated a uniform central grid and highway network and that wiped out half the railroads and JPods and Hyperloop are soon going to start building solar powered mobility networks that show that this was an unessential requirement. What can be done in the nuisance area to speed the building of this physical internet and hold governments accountable for violating constitution in federalism?

Donald Kochan:               I have to concede that's far beyond my area of expertise. I don't know how nuisance law might be manipulated to address that or how successful it might be.

Dean Reuter:                   We do have another caller. Thank you. We do have another caller question so let's head in a new direction here.

Speaker 1:                       What role should courts according to the restatement, or restatements particularly as they're revised over the time in adjudicating these kinds of questions, what weight should they be given? Is there some degree of skepticism that a court should be deploying when looking at the restatement in this kind of context?

Donald Kochan:               The restatements are not law themselves. They are persuasive authority designed to do two things. One is to generally summarize what the state of the law is and to the extent the state of the law among the various courts throughout all the states, to the extent the state of the law is unsettled to recognize some of those things, to recognize differences. So as far as the restatement goes, it is not law but it can be seen as persuasive and adopted in judicial decisions as the appropriate standard. I think that as I believe you're recognizing, courts sometimes accept it into their own jurisprudence and sometimes they accept it with clarifications, alterations, limitations. So I think it is useful. Courts find it useful and but it is obviously not, there's no reason to give it a free pass. Every court should question whether or not it is an accurate reflection of what the law is before adopting it. I think you see here the acceptance of it. In part it's hard to narrow how far the judge would go in accepting the restatement or how he would fully apply it given the absence of a robust discussion. It's really just kind of a passing discussion that here is what you would need to do if we were to adopt the restatement and if you did you would need to go through this balancing effort.

Donald Kochan:               There are certainly critics of this restatement test and there are other restatement, excuse me, there are other nuisance tests that are alive in some of the state courts. There's a, some state courts say they're applying the restatement but really are applying more of a threshold level of test in which they just determine whether or not there has been an interference, an unreasonable interference with the use and enjoyment of another's property and don't really go through the balancing effects after. So I would say that the area of nuisance law in particular is one in which the courts are not universally adopting the same one that the court seems to be endorsing in this opinion.

Dean Reuter:                   Let me make what might be a final call for questions. If you have a question, now is the time to ask it. Three minutes left. Push the star button and the pound button on your telephone. Seeing none, let me give a minute or two to our guest, Professor Donald Kochan to express a final thought or wrap up.

Donald Kochan:               In closing, I think that we see a, we see cases here about public nuisance and about climate change, but I think that even though they are focused on that particular issue, these cases are particularly useful for understanding the balance of power between the different branches of government. There are a number of things which we wish we could have a remedy for and the question becomes who should those seeking the remedy ask for that relief? Our constitution sets up a system of separated powers. It identifies a limited but independent judiciary that is designed to resolve actual cases and controversies, things which are usually not of generalizable impact. That is normally generalized grievances, those things which implicate the public at large, are not the kinds of things that come before the courts. It is not the court's duty to decide public policy so these cases really test that idea because it is at this intersection of deciding policy on complex issues affecting the general public. But at the same time, courts do exist to provide relief for actual harm. For actual plaintiffs from actually culpable defendants and this is one of those places where that tension arises. How attenuated are theses harms, such that they belong not so much in the courts but instead in the political branches where we can have a robust debate and identify the appropriate solutions.

Donald Kochan:               Particularly when the courts have the ability to potentially interfere with the discretion and latitude that those branches may need in order to resolve what is a serious, complex, public issue. And I think this will not be the last word we hear on this matter. There are plenty of other cases percolating as well as this one likely going to be appealed in which we will continue to have this debate over where should we address climate change, what branch is best suited for that? But also, what is the proper delineation of responsibility between the different branches of government?

Dean Reuter:                   Very good. Well, my thanks to you Professor Donald Kochan for joining us. We certainly appreciate your time here today. Look forward to having you back on maybe this or some other matter certainly. I want to thank the audience as well. Wish everybody a happy Fourth of July, but thank the audience for dialing in and for your thoughtful questions. A reminder to check The Federalist Society's website. Monitor your emails for a schedule of upcoming telephone conference calls. But until that next call, we are adjourned. Thank you very much everyone.

Donald Kochan:               Thank you. And happy Fourth of July.

Dean Reuter:                   Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at FedSoc.org/multimedia.