Greenhouse gasses: Political question or public nuisance?

Following closely on the heels of two high-profile reversals from the 2nd and 5th Circuits finding subject matter jurisdiction over public nuisance actions for damage allegedly caused by greenhouse gas emissions, U.S. District Judge Saundra Armstrong did what the district courts in those two prior actions did by dismissing the Village of Kivalina’s federal common law claim for nuisance, holding that her court lacked jurisdiction on the basis of political question and lack of standing.  In doing so, Judge Armstrong set the case up for a 9th Circuit appeal and further percolation among the circuits as to the question of whether climate change caused by greenhouse gasses is a justiciable public nuisance, or a non-justiciable political question.  The 2nd and 5th Circuits have now found justiciable public nuisances.

Proponents of GHG litigation argue that a similar outcome at the 9th Circuit would accelerate adoption of GHG-reducing technologies in electricity generation and transmission.

Here’s the current round up:

Second Circuit:    Connecticut v. American Electric Power Co. — View the Complaint, the S.D.N.Y. Order granting defendants’ motion to dismiss, and the 2nd Circuit’s Sept. 21, 2009 opinion reversing the district court.

Fifth Circuit:   Comer v. Murphy Oil USA, Inc. —  View the Third Amended Class Action Complaint filed in the Southern District of Mississipi, the district court’s order granting defendants’ motion to dismiss, and the 5th Circuit’s Oct. 16, 2009 opinion reversing the district court.

Ninth Circuit:  Village of Kivalina v. ExxonMobil — View the Complaint and Judge Armstrong’s Order dismissing the action.

Ninth Circuit:  California v. General Motors — View the Complaint and Judge Martin Jenkins’ Order granting defendants’ motion to dismiss.  The case was originally appealed to the 9th Circuit but the appeal was withdrawn .

Energy consultants clash over copyright in independent engineer’s report concerning coal-fired co-generation plants

Engineering consulting firms R.W. Beck and E3 Consulting provide independent engineering reports for developers to secure financing for energy projects.  When E3 provided a report for Calyon Corporate and Investment Bank on two coal-fired co-generation plants owned by Windsor Financing LLC, competitor R.W. Beck cried foul and filed a complaint in Colorado federal court alleging willful copyright infringement and three state law claims — unfair competition, deceptive trade practices, and unjust enrichment.

Reports disseminated by both companies contained a section called “Principal Considerations and Assumptions Used in the Projection of Operating Results.”  However, defendant E3 claimed that most of the language in Beck’s copyrighted reports was public domain because Beck had taken the material from a pre-existing third-party source which itself was in the public domain.

The district court granted summary judgment for E3.  In an Opinion issued August 14, 2009, the 10th Cir. affirmed as to the three state law claims but reversed and remanded on the copyright claim, finding that Beck had presented evidence that it had not used language from a third-party report, but rather its own in-house copyrighted documents.

Not too much should be read into this decision.  In finding that Beck presented evidence supporting its copyright and reversing summary judgment, the appellate court did not affirm the presence of a copyright belonging to Beck.  Rather, it merely affirmed that there is a factual dispute as to whether there is a copyright belonging to Beck, which the district court must resolve.  Moreover, the appellate court unfortunately was unable to address E3’s argument that Beck should not have a copyright because the language in the report is “functional” and not “expressive.”  The court held that Beck should be able to respond to this argument at the district court.