Sunday, October 25, 2009
I have always been a little uncomfortable with the purported distinction between "public" and "private" law, as applied to Torts. By the second half of the 20th Century, the aspirations of tort law were certainly public-regarding, aimed not just at righting fractures among a small set of individuals, but laying guidelines for proper conduct in a society that, as the California Supreme Court dystopically suggested in Tarasoff, had become "crowded[,] computerized" and "risk-infested".
Yet, reading a recent decision of the Fifth Circuit prompts one to think carefully about the private/public border in tort cases. The decision is Comer v. Murphy Oil, et al., decided two weeks ago. The case was filed by property owners living along the Mississippi Gulf Coast who suffered losses as a result of Hurricane Katrina. Those losses, they allege, are traceable to the tortious conduct of domestic U.S. energy and chemicals firms that emit greenhouse gases. By contributing to global warming, this conduct worsened the severity of Hurricane Katrina, and exacerbated (or perhaps caused entirely) plaintiffs' property damage. The plaintiffs seek class action status.
The Fifth Circuit overturned a District Judge who found that the plaintiffs lacked standing, and were further barred by the political question doctrine. In language that would be familiar to students of Boomer v. Atlantic Cement, or a number of products liability cases and analyses over the years, the District Judge viewed the litigation as "a 'debate' about global warming", and regarded the requisite technical and political judgments needed to settle the respective rights of emitters (and facilitators of emissions), and property owners (undoubtedly themselves emitters as well) as lying beyond the remit of the judiciary.
The opinion is only about tort law in a literal sense: standing and justiciability concerns supply the frame for a portrait of alleged intentional and negligent invasions that remains to be drawn. Distinguishing between claims to prevent future harm, and claims - as presented in Comer - to redress past injury, the Fifth Circuit characterized the action as a common-law action asserting private rights, which does not ordinarily trigger standing concerns. To the extent that standing nonetheless requires that the alleged harm be "fairly traceable" to the challenged conduct, that was met by the essential story described above: Defendants' emissions cause global warming, which leads to higher sea levels and increased hurricane activity, culminating in plaintiffs' injuries. Though the court was careful to observe that this alleged causal chain might not suffice to establish proximate causation on the merits, the merits of the case were not before it. Judge Davis concurred, suggesting that he would have dismissed the case on proximate cause grounds. The defendants made this traditional, tort-based argument for dismissal at the trial level, but the Fifth Circuit left that to be developed after remand.
Like Judge Davis, I wish they had taken this issue up (though perhaps certification to the Mississippi Supreme Court, rather than an unadorned Erieguess, is the best outcome procedurally). I have profound reservations about the claim, implicit in nominally private climate change litigation, that the tort system is capable of specifying rights and responsibilities on the subject of global warming. I like to tell my students that we have a tort system designed for horse-and-buggy accidents. In fact, this is unduly generous. The tort system cannot even handle simple car accident cases without tremendous delay and inefficiency - and this is with the assistance of a claims-settling insurance bureaucracy that pre-determines the vast majority of outcomes.
As tort law's scope expanded during the 20th Century, the nature and complexity of tort claims changed. Now, it is not unusual for claims to involve precise questions of epidemiology (toxic torts), and polycentric interests (competing claims for product warnings, for example). The tort system is not designed for, and probably will never handle well, these sorts of injuries. The system is necessarily biased toward discrete and limited injuries; in even the simplest cases, it of necessity excludes from consideration large swathes of stakeholders in the name of - to borrow a term - justiciability. Structurally, it is not ideal, and is in fact quite ill-suited, for adjudicating entitlements among many parties offering competing claims for the mantle of "the public interest". If I were writing these words in 1975, they would be just as true.
Writing them in 2009 raises as well an entirely different objection to the use of tort law here. Tort law has been in retreat for decades. Courts are not fashioning new duties at the heady clip seen in the 1960s and 70s. Rather than dramatically rewrite tort law, which is rather difficult to do, courts have recoiled from its earlier excesses by trimming doctrine at the margins. A question of proximate cause, which once may have served as an open-ended invitation to search for a just outcome, is more likely today to be used restrictively to deny claims, thus nudging future potential parties towards private or political resolutions of their disputes. Today's tort system, to anthropomorphize a bit, no longer sees itself as wide-ranging arbiter of social conduct, faithful only to its own ideas about justice. Of course, in main operation, the tort system never quite looked that way, but there was a time when its broadest aspirations reached far beyond the quotidian categories of harm that had long been uncontroversially settled.
It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago. Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pre-termitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment. I don't think that is likely, and I hope it doesn't happen. It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change. I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.
Associate Professor of Law