No. 07-60756

IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT

Ned Comer, et al.,Plaintiffs-Appellants

v.

Murphy Oil U.S.A., et al.,Defendants-Appellees

On Appeal from the United States District Court forthe Southern District of Mississippi

BRIEF FOR AMICI CURIAE EDISON ELECTRIC INSTITUTE, THE AMERICAN PUBLIC POWER ASSOCIATION, THE NATIONAL

RURAL ELECTRIC COOPERATIVE ASSOCIATION, AND THE NATIONAL MINING ASSOCIATION IN SUPPORT OF

DEFENDANTS-APPELLEES UPON REHEARING EN BANC

Ed R. Haden Jonathan P. DyalBalch & Bingham LLP1901 Sixth Avenue NorthSuite 1500Birmingham, AL 35203-4642(205) 251-8100

David B. Rivkin, Jr.Mark W. DeLaquilBaker & Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

Counsel for Amici Curiae(Additional Counsel Listed on Inside Cover)

F. William BrownellNorman W. FichthornShawn Patrick ReganAllison D. Wood Hunton & Williams LLP1900 K Street, NWWashington, DC 20006-1109(202) 955-1500

Douglas A. Henderson Troutman Sanders LLP600 Peachtree Street, Suite 5200Atlanta, GA 30308-2216(404) 885-3000

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CERTIFICATE OF INTERESTED PERSONS

Pursuant to Federal Rule of Appellate Procedure 26.1 and Fifth

Circuit Rule 28.2.1, counsel for Amici Curiae certifies that the following

persons and entities are interested in the outcome of this case. These

representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

Amici Curiae

Edison Electric InstituteThe American Public Power AssociationThe National Rural Electric Cooperative AssociationNational Mining AssociationAmerican Farm Bureau FederationAssociation of International Automobile Manufacturers Inc.Randall S. AbateDavid E. AdelmanDenise E. AntoliniLynn E. BlaisJohn E. BonineWilliam W. BuzbeeFederico CheeverRobin Kundis CraigHolly DoremusKirsten H. EngelDaniel FarberRobert L. GlicksmanJames R. GodleyOliver A. HouckDavid HunterAlice KaswanAlexandra B. KlassSarah Krakoff

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Douglas A. KysarRichard LazarusThomas O. McGarityJeffrey G. MillerKenneth M. MurchisonHari M. OsofskyPatrick A. ParenteauRobert V. PercivalZugmunt J.B. PlaterRonald J. RychalkWendy E. WagnerKeith WerhanMary Christina WoodSandra B. Zellmer

Counsel for Amici Curiae

BAKER & HOSTETLER LLPDavid B. Rivkin, Jr.Mark W. DeLaquil

BALCH & BINGHAM LLPEd R. Haden Jonathan P. Dyal

HUNTON & WILLIAMS LLPF. William BrownellNorman W. FichthornShawn Patrick ReganAllison D. Wood

TROUTMAN SANDERS LLPDouglas A. Henderson

GIBSON, DUNN & CRUTCHER LLPRaymond Bernard Ludwiszewski

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WIDENER UNIVERSITY, SCHOOL OF LAWJames Robert May

DONAHUE & GOLDBERG LLPSean H. Donahue

Defendants-Appellees

Murphy Oil USA, Inc.Universal Oil ProductsShell Oil CompanyExxonMobil Corp.AES Corp.Allegheny Energy Inc.Alliance Resource Partners, L.P.Alpha Natural Resources, Inc.Arch Coal, Inc.BP America Production CompanyCinergy Corp.ConocoPhillips CompanyConsol Energy Inc.The Dow Chemical CompanyDuke Energy Corp.BP Products North America Inc.E.On AgE.I. Dupont De Nemours & Co.Entergy Corp.FirstEnergy Corp.FPL Group Inc.Honeywell International Inc.International Coal Group, Inc.Massey Energy CompanyNatural Resource Partners L.P.Peabody Energy CorporationReliant Energy Inc.Tennessee Valley AuthorityWestmoreland Coal CompanyXcel Energy Inc.

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Chevron USA Inc.The American Petroleum Institute

Counsel for Defendants-Appellees

ARNOLD & PORTER LLPNancy G. MilburnYue-Han Chow Michael B. Gerrard

BAKER BOTTS LLPJ. Gregory CopelandSamuel CooperSteven J. Mitby

BENNETT, LOTTERHOS, SULSER & WILSON PAWilliam L. Watt

BROWN, BUCHANAN & SESSOMS PARaymond L. Brown

BUTLER, SNOW, O’MARA, STEVENS & CANNADA Kenneth W. Barton Benjamin McRae Watson

CARR, ALLISON, PUGH, HOWARD, OLIVER & SISSON PCThomas L. Carpenter, Jr.

COTTEN SCHMIDT & ABBOTT LLPLawrence E. AbbottCharles H. Abbott

COVINGTON & BURLING LLP Robert A. LongTheodore P. Metzler

CROWELL & MORING LLPKathleen Taylor Sooy

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Scott L. Winkelman Tracy A. Roman Daniel W. Wolff

CORLEW, MUNFORD & SMITH PLLCJohn G. Corlew Katherine K. Smith

FORMAN, PERRY, WATKINS, KRUTZ & TARDYRichard L. Forman

FRANKE & SALLOUM PLLCShellye V. McDonaldRichard P. Salloum

FRILOT LLC Kerry J. Miller Paul C. Thibodeaux

GHOLSON, BURSON, ENTREKIN & ORR PLLC Robert D. Gholson Craig N. Orr Noel A. Rogers Daniel D. Wallace

HOLCOMB DUNBARJack F. Dunbar

HORTMAN, HARLOW, MARTINDALE, BASSI, ROBINSON & MCDANIEL PLLCNorman G. Hortman, Jr. David L. Martindale

JENNER & BLOCK LLPRick RichmondBrent Caslin

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JOHNSON GRAY MCNAMARA LLCMary S. JohnsonThomas M. McNamara JONES DAYMichael L. Rice Kevin P. Holewinski Thomas E. Fennell

KING & SPALDING LLP Robert E. MeadowsTracie J. Renfroe Jonathan L. Marsh

MITCHELL, MCNUTT & SAMS John G. Wheeler

MUNGER, TOLLES & OLSON LLPDaniel P. Collins

O’MELVENY & MYERS LLPJonathan D. HackerMeaghan McLaine

SIDLEY AUSTIN LLPPeter D. KeislerQuin M. Sorenson

TENNESSEE VALLEY AUTHORITY Maureen H. DunnHarriet A. CooperEdwin W. Small

WISE, CARTER, CHILD & CARAWAYCharles Edwin RossJames Earl Graves, III William B. Lovett, Jr.

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Plaintiffs-Appellants

Ned Comer Brenda Comer Eric Haygood Brenda Haygood Larry Hunter Sandra L. Hunter Mitchell Kisielweski Johanna KisielweskiElliott Roumain Rosemary Roumain Judy Olson David Lain

Counsel for Plaintiffs-Appellants

F. GERALD MAPLES, P.A.F. Gerald MaplesStephen M. WilesCarlos A. Zelaya, IIAlexander J. Williamson

PORTER & MALOUFTimothy W. Porter

MUMPHREY LAW FIRM, LLCJ. Wayne MumphreyWayne B. MumphreyClayton Connors

In addition, counsel notes that the following entities were named

as defendants in a proposed fourth amended complaint annexed to

Plaintiffs’ motion for leave to amend filed in the District Court, which

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leave was denied as moot in the District Court’s dismissal order dated

August 30, 2007.

Murphy Oil USAUniversal Oil Products Company (UOP)Shell Oil CompanyChevron U.S.A. Inc.ExxonMobil CorporationBP p.l.c. d/b/a BP Amoco Chemical Company and BP Energy CompanyBP America Production CompanyBP Products North America Inc.Superior Energy Services, Inc.Placid Oil CompanyKerr-McGee Oil & Gas CorporationTotal PetroChemicals USA, Inc.ConocoPhillips CompanyAtlantic Richfield CompanyPioneer Natural Resources USA, Inc.Devon Energy Production Company, L.P.Marathon Petroleum Company LLCOccidental Crude Sales, Inc.Occidental Energy Marketing, Inc.Total Gas & Power North America, Inc.Hess CorporationAnadarko Petroleum CorporationApache CorporationBurlington Resources Offshore Inc.American Petroleum InstituteOil and Refining Entities 1-100AEP Generating CompanyColumbus Southern Power CompanyOhio Power Company, d/b/a/ AEP OhioSouthwestern Electric Power CompanyAEP Texas Central CompanyAEP Texas North CompanyAppalachian Power Company

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Indiana Michigan Power CompanyKentucky Power CompanyPublic Service Company of OklahomaAlabama Power CompanyGeorgia Power CompanyGulf Power CompanyMississippi Power CompanySouthern Power CompanyTennessee Valley AuthorityXcel Energy Inc.Northern States Power CompanyNorthern States Power CompanyPublic Service Company of ColoradoSouthwestern Public Service Co.TXU Energy Solutions Company, LPTXU Big Brown Company LPTXU Generation Development Company LLCTXU Generation Development Company II LLCTXU Gas Company, LPTXU Energy Company LLCTXU Energy Retail Company LPTXU Portfolio Management Company LPTXU Generation Company LPTXU Generation Management LLCTXU Enterprise Holdings Company, LLCCinergy Corp.Duke Energy Ohio, Inc.Duke Energy Carolinas, LLCDuke Energy Kentucky, Inc.Duke Energy Gas Services, LLCDuke Energy Indiana, Inc.Duke Energy Operating Company, LLCDuke Energy Merchants, LLCDuke Energy Fossil-Hydro, LLCThe Union, Heat and Power Company Reliant Energy Inc.Southern California Edison CompanyEdison Mission EnergyEdison Mission Energy Petroleum

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Edison Mission Energy Services, Inc.Edison Mission Energy FuelEdison CapitalEdison InternationalLG&E Energy Inc.LG&E Power Inc.Kentucky Utilities CompanyWestern Kentucky Energy Corp.Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc.Florida Power Corporation d/b/a Progress Energy Florida, Inc.Ameren Energy Generating CompanyUnion Electric Company, d/b/a AmerenUEAmeren Energy Resources CompanyAmeren Energy Fuels And Services CompanyCentral Illinois Public Service Company, d/b/a AmerenCIPSCentral Illinois Light Company, d/b/a AmerenCILCOIllinois Power Company, d/b/a AmerenIPAmeren Energy Generating CompanyAmeren Energy Marketing CompanyEntergy Louisiana, LLCEntergy Mississippi, Inc.Entergy Power & Light CompanyEntergy Arkansas, Inc.System Energy Resources, Inc.Allegheny Power Service CorporationAllegheny Energy Supply Company LLCWest Penn Power CompanyThe Potomac Edison CompanyMonongahela Power CompanyAllegheny Energy Inc.Duke Energy Corp.FirstEnergy Corp.Ohio Edison CompanyThe Cleveland Electric Illuminating CompanyThe Toledo Edison CompanyPennsylvania Power CompanyJersey Central Power & Light Company

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Metropolitan Edison CompanyPennsylvania Electric CompanyVirginia Electric and Power CompanyConsolidated Natural Gas CompanyDominion Energy, Inc.Virginia Power Energy Marketing, Inc.Michigan Consolidated Gas CompanyThe Detroit Edison CompanyMichCon Gathering CompanyMichcon Fuel Services CompanyMichCon Enterprises, Inc.Florida Power & Light CompanyFPL Energy, LLCFPL Group Capital, Inc.AES Corp.Indianapolis Power & Light CompanyNRG Energy, Inc.Texas Genco, Inc.Texas Genco, LLCNRG Thermal LLCArch Coal, Inc.International Coal Group, Inc.Alliance Resource Partners LPAlpha Natural Resources Inc.CONSOL Energy Inc.Foundation Coal Holdings Inc.Massey Energy Co.Westmoreland Coal Co.Peabody Energy Corp.Natural Resource Partners LPWestern Fuels Association, Inc.Rio Tinto Energy America Inc.The North American Coal CorporationOhio Valley Coal Co.Peter Kiewit Sons’, Inc.BHP Minerals International Inc.

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Dated: May 7, 2010 /s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........................................ iTABLE OF CONTENTS .......................................................................xiiiTABLE OF AUTHORITIES.................................................................. xivINTEREST OF AMICI CURIAE.............................................................. 1SUMMARY OF ARGUMENT .................................................................. 5ARGUMENT ............................................................................................ 6

A. Plaintiffs’ Claims Are Barred By The Political Question Doctrine .................................................................................. 61. The Political Question Doctrine Is A Core

Component Of A Justiciable Case Or Controversy ...... 62. Plaintiffs’ Attempt To Impose Industry-Wide

Liability Presents A Political Question ...................... 103. Plaintiffs Would Impermissibly Circumscribe The

Political Question Doctrine......................................... 214. Plaintiffs’ Unprecedented Claims Are

Fundamentally Different From Prior Tort Actions.... 25B. Plaintiffs’ Claims Would Lead To The Proliferation Of

Unadministrable Litigation................................................. 27C. Plaintiffs Lack Standing To Bring Their Claims ................ 30

CONCLUSION ....................................................................................... 33EXHIBIT A ............................................................................................. 34

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TABLE OF AUTHORITIES

CASES

Antolok v. United States, 873 F.2d 369 (D.C. Cir. 1989) .................10, 24

Baker v. Carr, 369 U.S. 186 (1962).....................................................8, 14

Bendix Autolite Corp. v. Midwesco Enterprises, Inc.,486 U.S. 888 (1988) ..............................................................................18

California v. Gen. Motors Corp., No. C06-05755 MJJ,2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007)............................................. 14, 15, 25, 27, 28

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009) ............................................................24

Chaser Shipping Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986), aff'd, 819 F.2d 1129 (2d Cir. 1987), cert. den’d, 484 U.S. 1004 (1988) ...................................................24, 25

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) ..............................................................................15

Cipollone v. Liggett Grp., 505 U.S. 504 (1992) .......................................20

Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated and reh’g en banc granted, 2010 U.S. App. LEXIS 4253 (5th Cir. Feb. 26, 2010) ....................22, 23

Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005),rev’d, 582 F.3d 309 (2d Cir. 2009)............................................ 14, 20, 27

Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007) ........................24

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DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................8, 22

Fin. Acquisition Ptnrs. v. Blackwell, 440 F.3d 278 (5th Cir. 2006) .......11

Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp.,95 F.3d 358 (5th Cir. 1996) ..................................................................31

Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) .................................26

Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972 (Miss. 2004)...................................................................27

Illinois v. Milwaukee, 599 F.2d 151 (7th Cir. 1979), rev’d on other grounds, 451 U.S. 304 (1981)........................................26

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986)........17

Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005 U.S. Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005) .....................27

Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008) .................................10

Little v. KPMG, 575 F.3d 533 (5th Cir. 2009) ........................................32

Massachusetts v. EPA, 549 U.S. 497 (2007)........................... 6, 17, 30, 31

Missouri v. Illinois, 200 U.S. 496 (1906).................................................26

Muskrat v. United States, 219 U.S. 346 (1911)........................................8

Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir)......14, 15, 18, 19, 21, 25, 27, 28

New Jersey v. New York, 283 U.S. 473 (1931) .......................................26

New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) ..............................................................................22

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Nixon v. United States, 506 U.S. 224 (1993) ....................................16, 23

O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994)...................................19

Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petrol., 577 F.2d 1196 (5th Cir. 1978) ..........................................................7, 24

Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971)..........................26

Perry v. Mercedes-Benz of N. Am., Inc., 957 F.2d 1257 (5th Cir. 1992) ..............................................................20

Rasul v. Bush, 542 U.S. 466 (2004)...........................................................7

Robinson v. TCI/US West Communications Inc., 117 F.3d 900 (5th Cir. 1997) ................................................................11

Sierra Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996)............31

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ......................32

United States v. Munoz-Flores, 495 U.S. 385 (1990) .............................24

Vieth v. Jubelirer, 541 U.S. 267 (2004)................................... 9, 14, 15, 23

Warth v. Seldin, 422 U.S. 490 (1975)......................................................32STATUTES

Miss. Code Ann. § 85-5-7.........................................................................16MISCELLANEOUS

Robert Bridge, Did Global Warming Help Bring Down Air France Flight 447?, RT (June 4, 2009)........................................................................28

Gene J. Koprowski, Global Warming Advocates Threaten Blizzard of Lawsuits., FOXNews (Mar. 28, 2010)..................................................28

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Harty Fish et al., The Relationship of Long Term Global Temperature Change and Human Fertility, Medical Hypotheses (2002).................28

Indira A.R. Lakshmanan, India to Resist U.S. Pressure on Carbon Emission Caps, Bloomberg.com (July 19, 2009)..................................12

Laurence H. Tribe et al., Too Hot for Courts To Handle: Fuel Temperatures, Global Warming,and the Political Question Doctrine(Wash. Legal Found., Working Paper No. 169, 2010) ..... 7, 8, 12, 16, 27

Restatement (Second) of Torts (1979).....................................................17

Seth Borenstein, Not So Windy: Research Suggests Winds Dying Down, Associated Press (June 10, 2009).........................................................28

The Federalist No. 47 (James Madison) ...................................................7

The Federalist No. 78 (Alexander Hamilton) ...........................................7

I.

INTEREST OF AMICI CURIAE

Amici curiae Edison Electric Institute (“EEI”), the American

Public Power Association (“APPA”), and the National Rural Electric

Cooperative Association (“NRECA”) each have electric utility members

throughout the nation that emit carbon dioxide in the course of

producing electricity. Amicus curiae National Mining Association

(“NMA”) has members throughout the nation that are integral to the

production of coal and agricultural minerals, the end use of which

results in greenhouse gas emission. Each is potentially affected by the

Panel’s open-ended holding regarding the justiciability of tort suits

arising from weather-related events.

EEI is a trade organization of U.S. Shareholder-Owned Electric

Companies whose members serve more than 90 percent of the ultimate

customers in the investor-owned segment of the electric utility industry,

and nearly 70 percent of all electric utility customers in the nation. EEI

is actively working with Congress on enactment of comprehensive

climate legislation that will achieve substantial economy-wide

greenhouse gas emission reductions while simultaneously promoting

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necessary advancements in climate-friendly technologies and helping to

maintain the reliability and affordability of the nation’s power supply.

APPA is the national service organization representing the

interests of the more than 2,000 not-for-profit municipal and other state

and local community-owned electric utilities that collectively provide

electricity to approximately 45 million Americans in 49 states. Seventy

percent of public power systems are located in cities with populations of

10,000 or less. APPA’s purpose is to advance the public policy interests

of its members and their consumers, and to provide member services to

ensure adequate, reliable electricity at a reasonable price with the

proper protection of the environment. Overall, public power accounts

for about 16 percent of all kilowatt-hour sales to retail electricity

consumers. Moreover, more than 90 percent of public power systems

meet the definition of and qualify as small businesses under the Small

Business Act and the Small Business Regulatory Enforcement and

Fairness Act of 1996.

NRECA is the national service organization that represents the

nation’s 930 not-for-profit, customer-owned rural electric cooperatives

serving more than 42 million electric consumers in 47 states. NRECA

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was formed in 1942 by the nation’s rural electric cooperative leaders,

dedicated to electrifying vast regions of the country, and providing

reliable and affordable electric power through electric cooperative

entities. NRECA was organized specifically to mitigate wholesale

electric power shortages in rural areas. Electric cooperatives are

incorporated as private entities in states in which they reside and have

legal obligations to provide reliable electric service to their customer

members. Sixty-six rural electric cooperatives (G&Ts) generate and

transmit power to 668 of the 864 distribution cooperatives. The G&Ts

are owned by the distribution cooperatives they serve. The remaining

distribution cooperatives receive power directly from other generation

sources within the electric utility sector. Collectively, electric

cooperatives serve all or portions of 2,500 of the nation’s 3,128 counties

and their service areas cover 75 percent of the U.S. landmass. Over 96

percent of the electric cooperatives are considered small entities under

the Small Business Regulatory Enforcement and Fairness Act of 1996.

NMA is a national trade association of mining and mineral

processing companies. NMA’s membership includes the producers of

most of the nation’s coal, metals, industrial and agricultural minerals,

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the manufacturers of mining and mineral processing machinery,

equipment and supplies, and the engineering and consulting firms,

financial institutions and other firms serving the mining industry.

Pursuant to Federal Rule of Appellate Procedure 29(a), Amici

Curiae state that all parties have consented to the filing of this brief.

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II.

SUMMARY OF ARGUMENT

Plaintiffs concede that they filed this suit because of their

perceived need for “meaningful political action.” Third Amended

Complaint (“TAC”) ¶ 20 (emphasis added). Unfortunately, rather than

pursue political action through political means, Plaintiffs seek judicial

redress against more than thirty companies whose emissions they

allege entered “Earth’s atmosphere” and contributed to a change in the

“Earth’s climate,” which in turn allegedly caused “warm waters and

warm environmental conditions . . . in the Atlantic Ocean,” all of which

they allege “direct[ly] and proximate[ly]” exacerbated the intensity of

Hurricane Katrina. TAC ¶¶ 4, 5, 15. Plaintiffs’ suit is part of a broader

movement to circumvent the political process and judicially regulate

greenhouse gas emissions.

Plaintiffs’ claims are “political questions” that do not fall within

the Article III jurisdiction of the federal judiciary. In this regard, the

federal judiciary is not the appropriate forum for defining acceptable

levels of greenhouse gas emissions or for determining which parties, if

any, should bear the responsibility and costs of remediating the impacts

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of global climatological processes that are allegedly influenced by

hundreds of years of industrial activity. These determinations are

outside the judicial sphere, lack any ascertainable basis in law, and

necessarily involve antecedent policy determinations.

Additionally, for the reasons set forth in Defendants’

Supplemental Brief, Plaintiffs lack Article III standing to maintain this

action. Massachusetts v. EPA, 549 U.S. 497 (2007), an action by

sovereign states seeking to vindicate procedural rights established by

statute, does nothing to support Plaintiffs’ putative common law claims.

Similarly, the Panel incorrectly relaxed Article III’s constitutional

standing requirements by misapplying controlling Fifth Circuit and

Supreme Court precedent.

III.

ARGUMENT

A. Plaintiffs’ Claims Are Barred By The Political Question Doctrine

1. The Political Question Doctrine Is A Core Component Of A Justiciable Case Or Controversy

Article III of the Constitution assigns the “judicial power of the

United States” to the federal courts. From the earliest days of our

Republic, the federal courts have been understood to be courts of limited

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jurisdiction: “‘They possess only that power authorized by Constitution

and statute, which is not to be expanded by judicial decree.’” Rasul v.

Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994)).

In this regard, the Framers recognized the inherent “limitation of

the judiciary as a decisional body.” Occidental of Umm al Qaywayn, Inc.

v. A Certain Cargo of Petrol., 577 F.2d 1196, 1203 (5th Cir. 1978).

James Madison described one important example of such a limitation,

that “judges can exercise no executive prerogative . . . nor any

legislative function, though they may be advised with by the legislative

councils.” The Federalist No. 47, at 224 (James Madison) (Hallowell

1842). Rather, “[t]he courts must declare the sense of the law . . . [for] if

they should be disposed to exercise will instead of judgment, the

consequence would equally be the substitution of their pleasure to that

of the legislative body.” The Federalist No. 78, at 358 (Alexander

Hamilton) (Hallowell 1842). As a result, “it has been axiomatic

throughout our constitutional history that there exist some questions

beyond the proper reach of the judiciary.” Laurence H. Tribe et al., Too

Hot for Courts To Handle: Fuel Temperatures, Global Warming, and

8

the Political Question Doctrine 3 (Wash. Legal Found., Working Paper

No. 169, 2010).1

One of the fundamental limitations on the federal judiciary is

found in the political question doctrine, which “originate[s] in Article

III’s ‘case’ or ‘controversy’ language.” DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 352 (2006). An Article III “case or controversy” requires

the existence of legal principles that define the relationship among

parties, which allows the allocation of liability and the fashioning of

remedies. See, e.g., Muskrat v. United States, 219 U.S. 346, 361 (1911).

Where responsibility cannot be assigned or an injury remedied absent

the antecedent existence of legal principles reflecting particular policy

judgments, the matter falls beyond the judicial power as authorized by

Article III. See Tribe, supra, at 3 (citing Marbury v. Madison, 5 U.S. (1

Cranch) 137, 170 (1803), and Baker v. Carr, 369 U.S. 186, 217 (1962)).

Expounding upon these constitutional principles, the Supreme

Court in Baker v. Carr, 369 U.S. at 217, recognized six circumstances

that place a case outside Article III jurisdiction:

1 Available at: http://www.wlf.org/Upload/legalstudies/workingpaper/012910Tribe_WP.pdf.

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[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing the lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Each of these tests illuminates the constitutional limits of the “judicial

powers” of Article III. Some of them reflect the inherent restrictions on

judicial powers; other restrictions are anchored in the fact that judicial

authority does not extend to matters that are properly the subject of the

legislative and executive powers assigned by Articles I and II to the

political branches. When any is met, the matter falls beyond the proper

reach of the judiciary. See Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)

(plurality) (Baker sets forth “six independent tests for the existence of a

political question”).

As such, and as with all other applications of the case or

controversy principle, the Court must undertake a “discriminating

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inquiry” to identify the specific questions that the matter would require

the Court to answer to adjudicate the case. Lane v. Halliburton, 529

F.3d 548, 564-65 (5th Cir. 2008). Tort claims may easily state political

questions. See, e.g., Antolok v. United States, 873 F.2d 369, 383 (D.C.

Cir. 1989) (Sentelle, J., opinion for the court) (“Were we to follow

plaintiffs’ view, there would hardly be a political question doctrine left.

As this is a tort case, so was [United States v.] Belmont [301 U.S. 324

(1937)] a contract action and Oetjen [v. Central Leather Co., 246 U.S.

297 (1918)] an action for replevin.”).

2. Plaintiffs’ Attempt To Impose Industry-Wide LiabilityPresents A Political Question

Plaintiffs’ Third Amended Complaint targets thirty companies

Plaintiffs allege contributed to the global pool of greenhouse gases

which, Plaintiffs allege, “has ‘demonstrably changed’” the “Earth’s

climate,” thereby “direct[ly] and proximate[ly]” causing an increase in

the strength of Hurricane Katrina. TAC ¶¶ 5, 15. In a proposed Fourth

Amended Complaint, Plaintiffs target an additional 110 companies.

It is indisputable that hurricanes and other storms have always

occurred due to natural atmospheric and climatological processes. It is

also indisputable that countless human activities and innumerable

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natural sources around the planet are responsible “for the emissions of

[carbon dioxide] and ultimately greenhouse gases” about which

Plaintiffs complain. Rec. Doc. 373 at 36. Plaintiffs concede that

emissions from natural and anthropogenic sources are undifferentiated

and accumulate in the planetary atmosphere. See TAC ¶¶ 3-5 (alleging

impacts on concentrations in “Earth’s atmosphere” and on “Earth’s

climate”). Plaintiffs also concede that climatic trends are influenced not

only by natural causes, but by hundreds of years of accumulated

natural and anthropogenic emissions. See TAC ¶ 9 (pleading increases

in “atmospheric concentrations . . . [since] the outset of the Industrial

Revolution”); see TAC Ex. 1, p. 4 (“Human activities have increased the

atmospheric concentrations of greenhouse gases and aerosols since the

pre-industrial era.”).2

Defendants-Appellees’ greenhouse gas emissions are the necessary

result of producing reliable, safe, and affordable energy through lawful

means, including fossil fuel combustion. Many Defendants have a “duty

2 Courts are permitted to consider attachments to the Complaint and matters of public record in deciding motions to dismiss under Rule 12(b)(6). See Fin. Acquisition Ptnrs. v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). In deciding motions to dismiss under Rule 12(b)(1), courts may also consider undisputed facts evidenced in the record and may resolve disputed facts. See Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997).

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to serve” their customers, and their mix of fuels for electric generation

activities, including the attendant carbon emissions, are driven by that

obligation. Energy production and the manufacture of basic products

essential to everyday health and welfare all depend on processes that

generate greenhouse gases. Indeed, the principal reason why

developing nations around the world resist restrictions on their

greenhouse gas emissions is that those restrictions would retard their

economic development and reduce their standards of living.3 Given the

inherently global nature of the fossil fuel-based economy, it is also well-

established that, without an international approach, greenhouse gas

reductions in one country may simply be offset by increased greenhouse

gas emissions elsewhere. See Tribe, supra, at 17-18 (discussing

“phenomenon of ‘carbon leakage,’ whereby poorly thought out carbon

reductions in one section of the global economy result in increased

emissions elsewhere”) (emphasis in original).4

3 E.g., Indira A.R. Lakshmanan, India to Resist U.S. Pressure on Carbon Emission Caps, Bloomberg.com (July 19, 2009). 4 Depending on the relative carbon efficiencies of the United States and the nation to which industry migrates, the leakage phenomenon may lead to a net increase in carbon emissions.

13

Against this backdrop, the District Court held that adjudication of

Plaintiffs’ suit presents a political question, and therefore falls outside

of the Article III judicial power, for two reasons: (i) there are no

judicially discoverable and manageable standards for resolving the case;

and (ii) the suit could not be judicially resolved absent an initial policy

determination of a kind clearly for nonjudicial discretion. Rec. Doc. 373

at 39-40. Taking these factors into account, the District Court correctly

explained that the allocation of responsibility for addressing global

climate change is a “debate which simply has no place in court.” Rec.

Doc. 373 at 39. Instead,

until such time as Congress enacts legislation which sets appropriate standards by which this Court can measure conduct, whether it be reasonable or unreasonable, and, more important, develops standards by which . . . juries can adjudicate facts and apply the law . . . and judge whether conduct crosses the line between reasonable and legal conduct and unreasonable or tortious conduct . . . . [these issues] are best left to the executive and to the legislative branches of the government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.

Rec. Doc. 373 at 39-40.

14

The District Court’s decision is consistent with Native Village of

Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009),

appeal pending, No. 09-17490 (9th Cir), Connecticut v. Am. Elec. Power

Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), rev’d, 582 F.3d 309 (2d Cir.

2009), and California v. General Motors Corp., No. C06-05755 MJJ,

2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007). Indeed, every

district court to consider the implications of adjudicating greenhouse

gas tort claims has determined that they present political questions.

These courts’ measured and prudent refusal to embroil the judiciary in

making climate policy is correct.

a. There Are No Judicially Manageable Standards For

Deciding Plaintiffs’ Claims. The second Baker test, “lack of satisfactory

criteria for a judicial determination,” is a “dominant consideration[]” in

determining the existence of a political question. Baker, 369 U.S. at

210 (quoting Coleman v. Miller, 307 U.S. 433, 454-55 (1939)). In fact,

the Supreme Court found a non-justiciable political question based

exclusively on the “lack of judicially discoverable and manageable

standards” in its most recent political question case. Vieth, 541 U.S. at

278 (plurality).

15

As the Supreme Court has explained, courts are without guidance

for resolving questions that are “delicate, complex, and involve large

elements of prophecy,” Chicago & Southern Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103, 111 (1948), or that would plunge them into a

“sea of imponderables,” Vieth, 541 U.S. at 290 (plurality). One could

scarcely imagine claims more protean and imponderable than Plaintiffs’

claims. Plaintiffs ask the Court to determine the “reasonable” level of

emissions for defendants’ contributions to the “sum of carbon dioxide in

the Earth’s atmosphere.” California, 2007 U.S. Dist. LEXIS 68547, at

*46. But such a determination would require a jury to evaluate “the

energy producing alternatives that were available in the past and

consider their respective impact on far ranging issues such as their

reliability as an energy source, safety considerations and the impact of

the different alternatives on consumers and business.” Kivalina, 663 F.

Supp. 2d at 874. Against that, the jury would “then have to weigh the

benefits derived from those choices against the risk that increasing

greenhouse gases would in turn increase the risk of” the alleged harm,

which in this case, is the intensification of hurricanes. Id. at 874-875.

Moreover, the jury would then have to determine that any lower level of

16

emissions by Defendants would not have been offset, or even exceeded,

by foreign competitors’ increased emissions. See Tribe, supra, at 17-18.

Still more imponderables arise when one considers that, in order

to adjudicate Plaintiffs’ claims under Mississippi’s pure comparative

fault system, a jury would need to determine the percentage of fault

attributable to all emitters of greenhouse gases (presumably in the

world), including non-parties and immune parties. Miss. Code Ann.

§ 85-5-7(2). Once again, this would require the jury to determine what

would be a “reasonable” level of emissions, not only for Defendants, but

for all of the other emitters, past and present, against which their

conduct must be measured.

The “difficulty of fashioning relief” also bespeaks the lack of

judicially discoverable and manageable standards. Nixon v. United

States, 506 U.S. 224, 236 (1993). Courts, by their nature, are unable to

remediate the “conceptual and methodological mismatch” between

judicial relief and climate change. See Tribe, supra, at 21. As Professor

Tribe notes:

Courts are incapable, as a matter of due process, of binding anyone other than the litigants before them . . . [which] automatically makes them institutionally ill-suited to entertain lawsuits

17

concerning problems this irreducibly global and interconnected in scope.

Id. This palpable lack of institutional competence is further evidence

that Plaintiffs’ global warming nuisance suit presents a non-justiciable

political question.

b. Plaintiffs’ Claims Would Necessitate An Inappropriate

Initial Policy Determination By The Judiciary. Courts are

“fundamentally underequipped to formulate national policies or develop

standards for matters not legal in nature.” Japan Whaling Ass’n v. Am.

Cetacean Soc’y, 478 U.S. 221, 230 (1986) (quotation omitted). Courts

“have neither the expertise nor the authority to evaluate . . . policy

judgments” concerning whether and how to regulate greenhouse gas

emissions. Massachusetts, 549 U.S. at 533. Adjudicating Plaintiffs’

claims would require the court to make numerous policy determinations

of a kind that only the legislative and executive branches are capable of

making.

First, the Court would have to make the policy determination that

the purported harms of the economic activity in which Defendants

engage outweigh its proven benefits. See Restatement (Second) of Torts

§ 821B cmt. e (1979) (describing a necessary “weighing of the gravity of

18

the harm against the utility of the conduct” to decide Plaintiffs’ claims).

This determination is far beyond the reasonableness and balancing

determinations competently made by jurors in ordinary nuisance cases.

Here, the weighing would require the jury or court to balance the social

utility and costs of industrial, agricultural, and individual activities

throughout the nation, if not the globe, that are only remotely related (if

at all) to the alleged harm. See Kivalina, 663 F. Supp. 2d at 876

(finding the need for an initial policy determination because

adjudication “requires balancing the social utility of Defendants’

conduct with the harm it inflicts”).

Even if one accepts Plaintiffs’ theory of causation, determining

whether Defendants’ methods for providing affordable, reliable energy

(or the frequency with which they use those methods) are more or less

socially beneficial than the alleged loss of private property to rising sea

levels is inherently an open-ended policy determination akin to “judging

whether a particular line is longer than a particular rock is heavy.”

Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897

(1988) (Scalia, J., dissenting).

19

Balancing these competing interests on an inherently national

and international scale requires a policy judgment the political

branches have struggled for decades to make. It cannot properly,

effectively and reasonably be made by a fact finder simply asking what

is “reasonable.” See, e.g., California, 2007 U.S. Dist. LEXIS 68547, at

**23-24; accord O’Melveny & Myers v. FDIC, 512 U.S. 79, 89 (1994)

(refusing to create federal common law tort malpractice liability

standards because “[w]hat sort of tort liability to impose on lawyers and

accountants . . . who provide services to federally insured financial

institutions . . . ‘involves a host of considerations that must be weighed

and appraised’” and “‘is more appropriately for those who write the

laws, rather than for those who interpret them’”) (quoting Northwest

Airlines, Inc. v. Transport Workers, 451 U.S. 77, 98 n.41 (1981)).

Second, the Court would have to make a policy determination as

to whether particular types of greenhouse gas emissions limits should

be or should have been imposed on emitters—the very same policy

determination with which the political branches are currently

grappling. See Kivalina, 663 F. Supp. 2d at 876-77 (adjudicating

common law greenhouse gas claims requires the court to make a policy

20

judgment of a legislative nature about what kind of GHG emissions

limits should have been imposed, rather than to resolve the dispute

through legal and factual analysis); Connecticut, 406 F. Supp. 2d at 272

(noting the “transcendently legislative nature of this litigation”).

Plaintiffs’ argument that adjudication of their claims would not

require the district court to fix and impose emission standards upon

Defendants is disingenuous. Any reasonableness determination would

establish a de facto standard for Defendants’ emissions, for the 140-plus

entities named in Plaintiffs’ proposed Fourth Amended Complaint, and

for the multitude of other emitters that could be brought before this or

other federal courts. See, e.g., Cipollone v. Liggett Grp., 505 U.S. 504,

521 (1992) (“State regulation can be as effectively exerted through an

award of damages as through some form of preventive relief.”)

(quotations and alterations omitted); Perry v. Mercedes-Benz of N. Am.,

Inc., 957 F.2d 1257, 1265 (5th Cir. 1992) (holding that an action for

damages may amount to a form of regulation).

Third, the Court would need to make the policy determination

that the parties that Plaintiffs chose to sue should be required to bear

the cost of remedying any harms that Plaintiffs can prove were caused

21

by greenhouse gas emissions. See Kivalina, 663 F. Supp. 2d at 877

(“Plaintiffs are . . . asking this Court to make a political judgment that

the two dozen Defendants named in this action should be the only ones

to bear the cost of contributing to global warming . . . the allocation of

fault—and cost—of global warming is a matter appropriately left for

determination by the executive or legislative branch in the first

instance.”). Amici are unaware of any prior common law nuisance suit

proceeding to adjudication that was premised on causation theories in

which massive contributions by non-parties over hundreds of years

were essential to the plaintiffs’ claims of harm. Moreover, the fact that

all but a tiny fraction of the emissions that allegedly caused Plaintiffs

harm were emitted by non-parties compounds the impossibility of

determining a “reasonable” level of emissions without an initial policy

determination by the elected political branches.

3. Plaintiffs Would Impermissibly Circumscribe The Political Question Doctrine

Plaintiffs argue that this action is justiciable because actions

involving adjudication of individual rights have not been committed by

the Constitution to Congress or the President. See Plaintiffs-Appellants

Supplemental Brief (“Pls. Supp. Br.”) at 14, adopting panel decision in

22

Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated and

reh’g en banc granted, 2010 U.S. App. LEXIS 4253 (5th Cir. Feb. 26,

2010). Plaintiffs’ reasoning bespeaks a wholesale misunderstanding of

the scope of the political question doctrine.

First, Plaintiffs’ argument proceeds from the faulty assumption

that, because “citizens have a right to ask courts to resolve private

disputes,” Pls. Supp. Br. at 8, “‘federal courts lack the authority to

abstain from the exercise of jurisdiction’” in this case. Comer, 585 F.3d

at 872 (quoting New Orleans Pub. Serv., Inc. v. Council of the City of

New Orleans, 491 U.S. 350, 358 (1989) (“NOPSI”)). But the political

question doctrine is not an exception to broadly-conferred jurisdiction,

nor is it a prudential abstention doctrine like that considered by the

Supreme Court in NOPSI. It is a foundational element of the Article III

judicial power. See DaimlerChrysler, 547 U.S. at 352 (political question

doctrine has its “origins in Article III’s ‘case’ or ‘controversy’ language”).

Second, Plaintiffs wrongly suggest that Article III jurisdiction

necessarily exists unless a “material issue is exclusively committed by

the Constitution or federal laws to the federal political branches.” Pls.

Supp. Br. at 14 (noting that because this case involves “tort claims . . .

23

further inquiry under each Baker formulation was unnecessary.”);

Comer, 585 F.3d at 875. Plaintiffs’ argument misconstrues Supreme

Court precedent. When the Supreme Court stated in Nixon v. United

States, 506 U.S. 224, 228 (1993), cited in Comer, 585 F.3d at 875, that it

“must begin” by “‘interpret[ing] the [constitutional] text in question and

determin[ing] whether and to what extent the issue is textually

committed’ to a political branch,” it did so in the context of considering

two Baker factors—textual commitment, and lack of judicially

discoverable and manageable standards—that were themselves

independently sufficient for the Court to conclude that the case was a

political question. See Vieth, 541 U.S. at 277 (plurality) (the Baker

factors are “six independent tests for the existence of a political

question”) (emphasis added). As such, the Nixon Court’s statement

stands for no more than the unremarkable proposition that where a

party argues that an issue is textually committed to a political branch,

the Court must start with the text in question.

Third, Plaintiffs err in suggesting that the political question

doctrine does not apply where individual rights are at issue. See Pls.

Supp. Br. at 14, 18; Comer, 585 F.3d at 870-71. In fact, as noted above,

24

the question of whether individual rights are directly implicated by a

suit “is simply irrelevant to the political question doctrine.” See United

States v. Munoz-Flores, 495 U.S. 385, 393-94 (1990). The label affixed

to a claim does not demonstrate that there are judicially discoverable

and manageable standards to resolve them. See Antolok, 873 F.2d at

383-84 (holding that a tort action presented a political question where

“the political nature of” the issues raised were of the type where “the

Judiciary has no expertise.”). Moreover, many courts have applied the

political question doctrine in tort cases. See, e.g., Occidental, 577 F.2d

1196 (5th Cir. 1978) (political question doctrine barred tortious

conversion claims); Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir.

2007) (political question doctrine barred claims for torts in violation of

international law); Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271 (11th Cir. 2009) (political question doctrine barred tort

claims arising from automobile accident); Chaser Shipping Corp. v.

United States, 649 F. Supp. 736, 738 (S.D.N.Y. 1986) (“Even though

awarding tort damages is a traditional function for the judiciary, it is

apparent that there is a clear lack of judicially discoverable and

25

manageable standards for arriving at such an award.”), aff’d, 819 F.2d

1129 (2d Cir. 1987), cert. den’d, 484 U.S. 1004 (1988).

4. Plaintiffs’ Unprecedented Claims Are Fundamentally Different From Prior Tort Actions

Contrary to Plaintiffs’ claims, this is not “just another tort case.”

Plaintiffs would unmoor the concept of tort from any precedent by (i)

predicating their theory of liability on the emission of greenhouse gases

into the global atmosphere, see TAC ¶ 3; and then (ii) pinning their

alleged injuries on a tenuous chain of events with the harm caused

indirectly through weather events that are allegedly intensified by this

undifferentiated body of emissions, rather than by virtue of their

presence or concentration on Plaintiffs’ property, see TAC ¶¶ 31, 40.

Jurors would be charged not with determining what would be an

unreasonable conduct by a defined number of sources with respect to a

finite area or region in which their conduct had the alleged effect, but

with “determining what is an unreasonable contribution to the sum of

carbon dioxide in the Earth’s atmosphere.” California, 2007 U.S. Dist.

LEXIS 68547, at *46; see also Kivalina, 663 F. Supp. 2d at 874-75.

Plaintiffs’ claims thus fundamentally differ from the

transboundary pollution cases on which they rely. In each of those

26

cases, the claims were justiciable and governed by judicially

manageable standards because they were based on discrete lines of

causation from individual sources to their alleged injuries that unfolded

in a specified distance and time. See Illinois v. Milwaukee, 599 F.2d

151, 167, 169 (7th Cir. 1979) (Illinois alleged that Milwaukee’s sewage

discharges directly flowed to and invaded Illinois properties, infecting

waters used for drinking and swimming), rev’d on other grounds, 451

U.S. 304 (1981); Georgia v. Tennessee Copper Co., 206 U.S. 230, 236

(1907) (Georgia alleged that “forests, orchards and crops” were harmed

by an open smelting pit several miles from the Tennessee-Georgia

border); Missouri v. Illinois, 200 U.S. 496, 517 (1906) (Missouri alleged

that Illinois directed sewage from Chicago into an artificial channel

that flowed into the Mississippi River where it “deposited” and

contaminated property and waterways used for drinking, agriculture

and manufacturing); Ohio v. Wyandotte Chems. Corp., 401 U.S. 493

(1971) (defendant companies dumped chemicals into streams that

flowed directly into Lake Erie, damaging Ohio property); New Jersey v.

New York, 283 U.S. 473, 476 (1931) (New York released “noxious,

offensive and injurious materials . . . into the ocean,” and those discrete

27

materials were “cast upon the beaches . . . causing great and irreparable

injury”).5 The distinction between Plaintiffs’ claims and traditional

transboundary nuisance cases is well recognized and makes Plaintiffs’

claims incapable of a principled, rational resolution based upon

reasoned distinctions. See Tribe, supra, at 15 (“[C]limate change

results only from the non-linear, collective impact of millions of

fungible, climactically [sic] indistinguishable, and geographically

dispersed emitters.”).

B. Plaintiffs’ Claims Would Lead To The Proliferation Of Unadministrable Litigation

Plaintiffs’ claims are part of a growing, and highly troubling, trend

of litigation by States and private parties around the country to

regulate through common law tort litigation. See Kivalina, 663 F.

Supp. 2d 863; Connecticut, 406 F. Supp. 2d 265; California, 2007 U.S.

Dist. LEXIS 68547; Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005 U.S.

Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005).

Allowing Plaintiffs’ claims to proceed would subvert the political

branches’ role in one of the most controversial policy issues of our time.

5 See also Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972 (Miss. 2004) (plaintiffs alleged that their properties were flooded by water released when the Mobile Water Authority opened a dam).

28

Plaintiffs will be quick to continue their abandonment of the democratic

process in favor of litigation. The costs of bringing suit are minimal.

Previous litigants have “cut-and-pasted” complaints nearly in whole,

compare Plaintiffs’ Complaints in Connecticut, and Korsinsky (Dkt # 1),

and in part, compare Plaintiffs’ Complaints in Connecticut, California,

and Kivalina (Exhibit A).

And there is no shortage of potential plaintiffs. Global climate

change is alleged to cause everything from male infertility,6 to airplane

crashes,7 to decreased winds,8 to say nothing of a crop failure in Austin,

Texas, a flood in Jackson, Mississippi, or a tornado in New Orleans. In

fact, environmental groups have been public about their plans to file

more such suits.9

Similarly, there is no logical reason to expect potential plaintiffs to

draw the line at the thirty defendants named in the Third Amended

6 Harty Fish et al., The Relationship of Long Term Global Temperature Change and Human Fertility 21-28, Medical Hypotheses (2002).7 Robert Bridge, Did Global Warming Help Bring Down Air France Flight 447?,, RT (June 4, 2009), available at http://rt.com/Top_News/2009-06-04/Did_global_warming_help_bring_down_Air_France_flight_447.html.8 Seth Borenstein, Not So Windy: Research Suggests Winds Dying Down, Associated Press (June 10, 2009), available at http://www.physorg.com/print163835515.html.9 Gene J. Koprowski, Global Warming Advocates Threaten Blizzard of Lawsuits, FOXNews (Mar. 29, 2010), available at http://www.foxnews.com/scitech/2010/03/29/global-warming-advocates-threaten-blizzard-lawsuits/.

29

Complaint, as opposed to the 140-plus defendants named in the Fourth

Amended Complaint, the 500 defendants that may be named in a Fifth

Amended Complaint, or even 10,000 defendants. If litigation is the

appropriate response to global climate change, it is no exaggeration to

say that the only appropriate litigation would be the war of all against

all, with virtually every natural and corporate person worldwide as

simultaneous plaintiffs and defendants. Plaintiffs themselves could be

counterclaim defendants, since each “contributes” to global

concentrations of carbon dioxide and other greenhouse gases.

Equally troubling, adjudicating global climate change tort claims

would almost certainly result in different courts establishing different

levels of, and rules for calculating, “reasonable” emissions for the same

class of facilities. Article III was never intended to allow different

courts, each striking what they perceive to be a “reasonable” balance

between utility and harm, to set inconsistent emission standards for

sources in other states throughout the country. Such an outcome is

untenable for potential defendants and another illustration of why this

matter exceeds the proper role of the federal judiciary.

30

C. Plaintiffs Lack Standing To Bring Their Claims

Amici agree with Defendants that the district court properly

determined that Plaintiffs lack Article III standing. Amici wish only to

highlight several fundamental errors in the Panel’s reasoning: its

misconstruction of Massachusetts v. EPA, 549 U.S. 497; its failure to

follow Fifth Circuit jurisprudence requiring a specific geographical

nexus to support standing; and its failure to recognize that Plaintiffs’

allegations were unduly speculative.

The Supreme Court’s decision in Massachusetts was predicated on

three key factors that are absent in this action. First, the Court noted

the Massachusetts plaintiff States “are not normal litigants for the

purposes of invoking federal jurisdiction,” and that each State’s “stake

in protecting its quasi-sovereign interests” entitles it “to special

solicitude” in establishing Article III standing. 549 U.S. at 518, 520.

Second, the Massachusetts plaintiff States invoked a congressionally-

articulated chain of causation to demonstrate that their claims were

traceable to EPA’s conduct. See 549 U.S. at 516 (“Congress has the

power to define injuries and articulate chains of causation that will give

rise to a case or controversy where none existed before.”) (quoting Lujan

31

v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J.,

concurring)). Third, the Massachusetts plaintiff States benefitted from

the relaxed procedural standing afforded to “litigant[s] to whom

Congress has accorded a procedural right.” 549 U.S. at 518 (internal

quotations omitted).

Without the “thumb on the scale” provided by these factors, the

Massachusetts plaintiff States would not have been able to establish

Article III standing. For these reasons as well as those advanced by

Defendants, Massachusetts does not support standing here.

The Panel’s reliance on this Court’s Clean Water Act

jurisprudence is similarly flawed. This Court has required a specific

geographic or other causative nexus between effluent discharges and

plaintiffs’ injuries where the water body in question is sufficiently large.

See Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp., 95 F.3d 358,

361 (5th Cir. 1996) (finding no standing where the “‘waterway’ is too

large to infer causation solely from the use of some portion of it”); cf.

Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 558 n.24 (5th Cir.

1996). In the case of greenhouse gas emissions, which are

32

undifferentiated and mix uniformly in the upper atmosphere, Plaintiffs

do not and cannot articulate a geographic or causative nexus.

Finally, the Panel’s decision ignores the principle that plaintiffs

lack standing where their theory of liability is based on speculation

about the actions of third parties. See Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490, 509 (1975).

Regardless of how this Court or any other federal court rules, the

growing number of greenhouse gas emitters in China, India, and other

developing nations are unlikely to sacrifice their nations’ economic

development to accommodate Plaintiffs. Thus, Plaintiffs’ alleged

injuries would have occurred regardless of whether Defendants had

voluntarily limited their emissions to an as-yet-to-be-determined

“reasonable” level. See Little v. KPMG, 575 F.3d 533 (5th Cir. 2009)

(claims for standing are unduly speculative where “claim of injury

depends on several layers of decisions by third parties”).

33

IV.

CONCLUSION

For the foregoing reasons, the court should affirm the District

Court’s decision.

/s/ Ed R. Haden (w/ consent)Ed R. Haden Jonathan P. DyalBalch & Bingham LLP1901 Sixth Avenue North, Suite 1500Birmingham, AL 35203-4642(205) 251-8100

Respectfully submitted,

/s/ David B. Rivkin, Jr.David B. Rivkin, Jr.Mark W. DeLaquilBaker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

/s/ F. William Brownell (w/ consent)F. William BrownellNorman W. FichthornShawn Patrick ReganAlison D. WoodHunton & Williams LLP1900 K Street, NWWashington, DC 20006-1109(202) 955-1500

/s/ Douglas A. Henderson (w/ consent)Douglas A. HendersonTroutman Sanders LLP600 Peachtree Street, Suite 5200Atlanta, GA 30308-2216(404) 885-3000

Counsel for Amici Curiae

EXHIBIT A

Connecticut v. AEP California v. General Motors Corp.

Kivalina v. ExxonMobil Corp.

Public Nuisance

Defendants, by their emissions of carbon dioxide . . . are knowingly, intentionally or negligently creating, maintaining or contributing to a public nuisance—global warming—injurious to the plaintiffs and their citizens and residents. Comp. ¶ 153, p. 43.

Defendants, by their emissions of carbon dioxide and other greenhouse gases from the combustion of fossil fuels in passenger vehicles and trucks, have knowingly created or contributed to and are knowingly creating or contributing to a public nuisance—global warming—injurious to the State of California, its citizens and residents. Sec. Amend. Comp. ¶ 58, p. 12.

IPCC

For example, the Intergovernmental Panel on Global warming (“IPCC”) concluded in its most recent assessment report, issued in 2001 (“IPCC 2001 Report”), that most of the observed warming over the last 50 years is likely to have been due to the increase in greenhouse gas concentrations.” “Likely” is an IPCC term of art meaning that scientists have a confidence level of 66-90%. Comp. ¶ 80, p. 22.

For example, the Intergovernmental Panel on Global warming (“IPCC”) concluded in its most recent assessment report, issued in 2001 (“IPCC 2001 Report”), that most of the observed warming over the last 50 years is likely to have been due to the increase in greenhouse gas concentrations.” “Likely” is an IPCC term of art meaning that scientists have a confidence level of 66 to 90 percent. Sec. Amend. Comp. ¶ 24, pp. 5-6.

35

Connecticut California Kivalina

Role of Defendants

Such management, direction, conduct and/or control is exercised through a variety of means, including through implementation by AEP and AEP Service employees and/or agents of policies, procedures, and programs relating to global warming generally, to carbon dioxide emissions specifically. Comp. ¶ 18, pp. 5-6.

Such management, direction, conduct and/or control is exercised through a variety of means, including through implementation by BP p.l.c. employees and/or agents of policies, procedures, and programs relating to global warming generally, to carbon dioxide emissions specifically. Comp. ¶ 24, p. 6.

History of CO2

Carbon dioxide levels have increased 35 percent since the beginning of the industrial revolution in the late 1800s. More than one-third of this increase has occurred since 1980 alone. The current carbon dioxide level in the atmosphere is higher than any time in the last 650,000 years, and likely higher than any time in the last 20 million years. Sec. Amend. Comp. ¶ 30, p.7

Carbon dioxide levels in the atmosphere have increased by 35 percent since the dawn of the industrial revolution in the 18th century, and more than one-third of the increase has occurred since 1980. The current level of carbon dioxide in the atmosphere is higher than at any time in the last 650,000 years. Comp. ¶ 125, p. 31.

36

Connecticut California Kivalina

Interstate

Carbon dioxide emissions and global warming are inherently interstate in nature. Defendants’ emissions of carbon dioxide, from any state where their electric generation operations may be located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide worldwide. Comp. ¶ 155, p. 44

Carbon dioxide and other greenhouse gas emissions resulting in global warming are inherently interstate in nature. Emissions of carbon dioxide and other greenhouse gases from defendants’ products, no matter where such products are operated, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide. Sec. Amend. Comp. ¶ 60, p. 13

Interference

Defendant [X] has engaged and continues to engage in intentional and/or negligent acts or omissions that injuriously affect the safety or health of the public or work a substantial annoyance, inconvenience, or injury to the public, and is therefore liable under the common law of public nuisance of the State of [Y]. Comp. ¶ 169, p. 45

Defendants have engaged and continue to engage in intentional or negligent acts or omissions that unreasonably interfere with the use and enjoyment of Plaintiffs’ properties, and/or work a substantial annoyance, inconvenience, or injury to the public, and are therefore liable under the applicable state statutory and/or common law of private and public nuisance. Comp. ¶ 265, p. 64.

CERTIFICATE OF SERVICE

I hereby certify that on May 7, 2010, I electronically filed the

foregoing document with the Clerk of the Court for the United States

Court of Appeals for the Fifth Circuit by using the appellate CM/ECF

system. Participants in the case who are registered CM/ECF users will

be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not

registered CM/ECF users. Accordingly, on May 7, 2010, I served a

paper copy and an electronic copy of same by United States mail,

postage prepaid, on the following persons:

David Lee Martindale15202 Hillside ParkwayCypress, TX 77433-5608

Ben H. StoneBalch & Bingham, LLP1310 25th AvenueGulfport, MS 39501-0000

Raymond Michael RippleSuite D-70121007 Market StreetWilmington, DE 19898-0000

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Donna L. GoodmanDuPont LegalSuite D-70141007 Market StreetWilmington, DE 19898-0000

Lawrence E. AbbottAbbott, Simses & KuchlerSuite 2005100 Village WalkCovington, LA 70433-0000

Paul C. ThibodeauxBenjamin Melvin CastorianoKerry J MillerFrilot LLC1100 Poydras StreetSuite 3700New Orleans, LA 70163-3600

John F. DaumO'Melveny & Myers400 S Hope StreetLos Angeles, CA 90071-0000

Robert Allen Long, Jr.Covington & Burling, LLP1201 Pennsylvania Avenue, N.W.Washington, DC 20004-2401

Anthony Michael WilliamsMichael Raudon PhillipsLouis Matthew GrossmanKean, Miller, Hawthorne, D'Armond, McCowan & Jarman, LLP909 Poydras StreetSuite 1450New Orleans, LA 70112-0000

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Brent L. CaslinKenneth Kiyul LeeJenner & Block, LLP633 W. 5th StreetSuite 3500Los Angeles, CA 90071

Jonathan Lawrence MarshRobert E. MeadowsKing & Spalding, LLP1100 Louisiana StreetHouston, TX 77002-0000

Ellen J. GlebermanAssociation of International Automobile Manufacturers2111 Wilson BoulevardSuite 1150Arlington, VA 22201-0000

Michael B. GerrardArnold & Porter, LLP399 Park AvenueNew York, NY 10022-0000

Robert R. GasawayKirkland & Ellis, LLP655 15th Street, N.W.Suite 1200Washington, DC 20005-0000

Michael L. RiceJones Day2727 N. Harwood StreetDallas, TX 75201-1515

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Richard L. FormanForman, Perry, Watkins, Krutz & Tardy, LLP200 S. Lamar StreetSuite 100City CentreJackson, MS 39201-0000

Kevin Patrick HolewinskiJones Day51 Louisiana Avenue, N.W.Acacia BuildingWashington, DC 20001-2113

Shellye V. McDonaldFranke & Salloum, PLLC2605 14th StreetGulfport, MS 39501-0000

Herbert L. ZarovJustin Bishop GrewellMayer Brown, LLP71 S. Wacker DriveChicago, IL 60606-0000

F. William BrownellNorman W. FichthornHunton & Williams, LLP1900 K Street, N.W.Washington, DC 20006-0000

Michael David FreemanBalch & Bingham, LLP1901 6th Avenue N.Suite 1500Birmingham, AL 35203-4642

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/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 6,715

words, including Exhibit A and excluding the parts of the brief

exempted by Fed. R. App. P.32(a)(7)(B)(iii).

I further certify that this brief complies with the typeface

requirements of Fed. R. App. P.32(a)(5) and the type style requirement

of Fed. R. App. P.32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word 2003 in 14 point

Century font.

/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association

CERTIFICATE OF COMPLIANCE WITH ECF FILING STANDARDS

Pursuant to Paragraph A(6) of the “ECF Filing Standards” of the

United States Court of Appeals for the Fifth Circuit, I certify that no

privacy redactions were required to be made to the attached Brief under

Fed. R. App. P. 25 or Fifth Cir. R. 25.2.13; that the paper copies served

on counsel, and to be submitted to the Court are exact copies of the

document filed electronically; and that the document has been scanned

for viruses with the most recent version of a commercial virus scanning

program and is free of viruses.

/s/ Mark W. DeLaquilDavid B. Rivkin, Jr. Mark W. DeLaquil Baker Hostetler LLPWashington Square, Suite 11001050 Connecticut Avenue, NWWashington, DC 20036-5304(202) 861-1500

Attorneys for Amici CuriaeEdison Electric Institute American Public Power AssociationNational Rural Electric Cooperative AssociationNational Mining Association