climate law paper

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Signing the New Social Contract: Energy Efficient LightBulbs Wont Cut it Anymore

Exploring the Path Toward Officially Combating Global Climate Change

J. Duffy

I. Introduction

Going Green is no longer reserved for the liberal

elite or zealous environmentalists. 1 Environmentalism has

become commonplace even popular - and a social contract

between citizen-consumer and industry has emerged. 2 The

citizen-consumer is filling up their Toyota Prius, affixed

with public radio and non-profit stickers with reusable

grocery bags after shopping at Whole Foods, and they are

feeling pretty good. The media is reinforcing these ideals

1See Thomas L. Friedman , Hot Flat and Crowded: Why We Need a Green

Revolution And How it Can Renew America 203-216(Farrar, Strauss andGiroux, 2008)(explaining in chapter 9 205 Easy Ways to Save the Earththat green trend is becoming popularized and democratized butundertaking is more difficult than current green trend is portraying).2

See Richard Stengel, For American Consumers, A ResponsibilityRevolution, Time Magazine , Sept. 10, 2009,http://www.time.com/time/nation/article/0,8599,1921444,00.html . Thereis a new dimension to civic duty that is growing in America it's the

idea that we can serve not only by spending time in our communities andclassrooms by spending more responsibly. We are starting to put ourmoney where our ideals are. Id. See also John C. Dernbach, Overcomingthe Behavioral Impetus for Greater U.S. Energy Consumption, 20 Pac.

McGeorge Global Bus. & Dev. L. J. 15, 27 (2007). Several differenttypes of human behaviors are relevant to environmental protection,including committed activism, financial and other support forenvironmental causes and protection, and influencing the organizationsto which individuals belong. Id.
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and happily proclaiming, its easy to be green. 3

Corporations are responding to the emerging social contract

as well. 4 For example, Wal-Mart is working toward doubling

the fuel efficiency of its fleet by 2015 as well as taking

measures to reduce packaging and waste. 5 Coca-Cola is

recycling plastic bottles, replacing petroleum-based

plastic in bottles with organic material, reducing energy

consumption and increasing sales volume while decreasing

water use. 6 Forty percent of consumers reported that they

purchased a product in 2009 because they liked the social

or political values of the company who bought it. 7 These

3See for example Leslie Billera, Easy Ways to Go Green: 13 Eco-Friendly

House Tips, Good Housekeeping ,http://www.goodhousekeeping.com/home/green-living/ways-to-go-green . Seealso 10 Easy Ways to Be Green,http://www.ourearth.org/Education/greentips.html . See also JeanneHuber, 22 Little Ways to Go Green, CNN, Oct. 24, 2007,

http://www.cnn.com/2007/LIVING/homestyle/10/23/22.go.green/index.html(describing low-stress steps to take around the house to reduce yourcarbon footprint).4

See Jared Diamond, Will Big Business Save Earth, NY Times , Dec. 5,2009, http://www.nytimes.com/2009/12/06/opinion/06diamond.html?pagewanted=1&_r=1 . The embrace of environmental concerns by chiefexecutives has accelerated recently for several reasons. Id. Lowerconsumption of environmental resources saves money in the short run.Id. Maintaining sustainable resource levels and not polluting savesmoney in the long run. And a clean image one attained by, say,avoiding oil spills and other environmental disasters reducescriticism from employees, consumers and government. Id. See alsoClimateCounts.org, http://www.climatecounts.org/ (bringing consumersand companies together by scoring companies based upon their climateimpact).5

See Jared Diamond supra note 4.6

Id.7

See Richard Stengel supra note 2 (citing statistics as evidence ofchanging mind-set, new kind of social contract among consumers,business and government. Stating we are seeing rise of the citizenconsumer, and beginnings of responsibility revolution).

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efforts and emerging values are very important but they are

no match for the climate crisis.

There is now a clear scientific consensus and a growingsocial consensus that global warming has begun. The

Intergovernmental Panel on Climate Change (IPCC), which

consists of over 2,000 scientists from the United States

and other countries, stated in its Fourth Assessment Report

that the Earths climate is changing due to human activity

and has increasingly done so since the Industrial

Revolution. 8 Naturally, the suns radiation passes through

the atmosphere and is absorbed by the Earths surface. 9

Some of this energy is converted into heat and infrared

radiation and bounces back into space. 10 Currently,

however, greenhouse gases (GHGs), namely carbon dioxide,

capture some of this radiation and re-radiate the heat,

thus warming the Earth. 11 In addition, natural sinks, such8

See generally Pew Center on Global Climate Change and the Pew Centeron the States, Climate Change 101: Understanding and Responding toGlobal Climate Change, (Jan. 2009) available athttp://www.pewclimate.org/global-warming-basics/climate_change_101 . Seealso IPCC, Climate Change 2007: Synthesis Report. Contribution ofWorking Groups I, II and III to the Fourth Assessment Report of theIntergovernmental Panel on Climate Change (Core Writing Team, Pachauri,R.K and Reisinger, A. (eds.)). IPCC, Geneva, Switzerland, (2007),http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm. There is very high confidence thatthe global average net effect of human activities since 1750 has beenone of warming. Id.9

See Global Climate Change and U.S. Law 5 (Michael Gerrard ed.,American Bar Association 2007).10

See Id.11

See Id. The principal GHGs are carbon dioxide, methane, nitrousoxide, various hydrofluorcarbons, various perfluorocarbons and sulfur

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as plants and the ocean, which absorb GHGs, are being

destroyed thus increasing the amount of GHGs in the

atmosphere. 12 Climate-related changes are already being

observed in the United States and its coastal waters. 13

These changes include increases in heavy downpours, rising

temperature and sea level, rapidly retreating glaciers,

thawing permafrost, lengthening growing seasons,

lengthening ice-free seasons in the ocean and on lakes and

rivers, earlier snowmelt, and alterations in river flows. 14

These changes are projected to grow and lead to more

serious events including flooding and extreme weather

events. 15 One must look back fifteen million years to find

hexafluoride. U.S. Environmental Protection Agency, Climate Change:Basic Information (Oct. 26, 2009)http://www.epa.gov/climatechange/basicinfo.html. But see Drew Shindallet al., Improved Attribution of Climate Forcing Emissions, Science 716-

18 (Oct. 3, 2009). Methane accounts for about 27 percent of the man-made warming so far, largely because of how it interacts withatmospheric aerosols. Id. Halocarbons have caused 8 percent of thewarming; black carbon 12 percent; carbon monoxide and volatileorganics, 7 percent and carbon dioxide, 43 percent. Id.12

See Richard J. Lazarus, Super Wicked Problems and Climate Change:Restraining the Present to Liberate the Future, 94 Cornell L. Rev.1153, 1162-63 (July 2009). Natural sinks can decrease GHG concentrationin the atmosphere by absorbing them. Id. Plants are a major sink,however, development has led to mass clearing of vegetation, mostnotably, the tropical rainforests. Id. See also infra notes 98-99(discussing ocean acidification).13

See U.S. Global Change Research Program, Global Climate Change

Impacts in the United States (Thomas R. Karl, Jerry M. Melillo, andThomas C. Peterson, eds. Cambridge University Press, 2009),http://www.globalchange.gov/publications/reports/scientific-assessments/us-impacts (summarizing the science and the impacts ofclimate change on United States, now and in future, focusing on climatechange impacts in different regions of the U.S. and on various aspectsof society and the economy such as energy, water, agriculture, andhealth).14

See Id.15

See Id.

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Despite the grim realities of climate change, as the late

Dartmouth College environmentalist Dana Meadows stated, We

have just enough time starting now. 21 The citizen-

consumer and corporations must match the values that their

recent efforts exhibit with a firm and substantial

commitment to revolutionize the American economy. This

social contract must be joined by the government and

reinforced by placing a price on GHG emissions. This

revolution will require massive, sustained, cross-

generational political will to transform a nations

consumption ethic.

GHGs are particularly problematic pollutants to regulate

because there are no GHG hot spots; they travel the globe

with equal effect. 22 GHGs remain in the atmosphere for

for Humanity . 461 Nature 472-475 (Sept. 24, 2009). For all of humanhistory until about 200 years ago, our atmosphere contained 275 partsper million of carbon dioxide. Id. By now the planet has 390 partsper million CO2 and this number is rising by about 2 parts per millionevery year. Id. The world's leading climate scientists have nowrevised the highest safe level of CO2 to 350 parts per million. Id.See generally Peter Hayes, Resilience as Emergent Behavior, 15 Hastings

W.-N.W. J. Env. L. & Pol'y 175 (Winter 2009). While 350 parts permillion is the goal to avert a climate disaster, changes will occur andsocieties must take climate adaption measures, this article discussesadaptation strategies.21

See Hot Flat and Crowded supra note 1 at 170. See also Steven

Ferrey, When 1 + 1 No Longer Equals 2: The New Math of LegalAdditionality Controlling World and U.S. Global Warming Regulation,10 Minn. J.L. Sci. & Tech. 591, 668-69 (Spring 2009). ClimatologistJames Hansen notes that if we wait a mere decade until 2018 to stop thegrowth of greenhouse gas emissions then we reduce the probability ofavoiding catastrophic effects of warming to almost zero. Id. (citingRobin Chase, Get Real on Global Warming Goals, B. Globe , Apr. 22, 2008,at A15).22

See Global Climate Change and U.S. Law supra note 2 at 5-6(emphasizing that global climate change demands global solutions).

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decades with a positive feedback loop, where the original

GHG emissions cause certain phenomena, which in turn

exacerbate further warming phenomena. 23 There is therefore

a huge delay between reductions in GHGs and any mitigating

effect on climate change. 24 Further, as the United States

population grows and becomes more affluent, its citizens

demand more commodities and comforts, which as status quo

would have it, requires GHG-belching energy. 25 Electric

power produces thirty-four percent of the United States

GHG emissions, followed by transportation at twenty-eight

percent and industry at nineteen percent. 26

Due to Congress failure over the past two decades to

23See Chris Wold et al., Climate Change and the Law 13 (Matthew Bender

and Company Inc. 2009). Feedback loops are defined as a pattern ofinteracting processes where a change in one variable, throughinteraction with other variables in the system, either reinforces the

original process. Id. There are both positive and negative feedbackloops. Id. Melting permafrost is an example of a positive feedbackloop, where the thawing soil releases massive quantities of methaneinto the atmosphere. Id.24

See Global Climate Change and U.S. Law supra note 2 at 5-6. See alsoLazarus supra note 5 at 1166-67 (explaining that it will not be enoughto slow rate of increases or even to decrease absolute annualemissions).25

See generally, Hot Flat and Crowded supra note 14 at 53-76(discussing implications of growing populations that are consuminglike Americans). See John C. Dernbach, Navigating the U.S. Transitionto Sustainability: Matching National Governance Challenges withAppropriate Legal Tools, 44 Tulsa L. Rev. 93, 94 (Fall, 2008)

(discussing current influence of United States throughout world andability to provide attractive models of sustainable development). Seealso Peter Glaser & John Cline, Federal Regulation of Greenhouse Gases:Where Weve Been and Where Were Going, 2009 WL 1342292 at 2 (April,2009). Approximately 70 percent of energy used in the United States isderived from fossil fuels. Id. Carbon dioxide is created throughcombustion of any fossil fuel and since every business and residenceuses energy, GHG regulation will affect all aspects of economic life.Id. See generally, John C. Dernbach supra note 2.26

See Climate Change 101 supra note 8.

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adopt legislation to control GHG emissions, advocates of

regulation have looked elsewhere to fill in the gaps. 27 The

Environmental Protection Agency (EPA), for example, has

felt pressure to regulate GHGs under the Clean Air Act

(CAA). 28 Advocates are also using the Clean Water Act

(CWA), National Environmental Policy Act (NEPA), the

Endangered Species Act (ESA) and increasingly state and

federal tort law to achieve regulation within the court

system. 29 The Obama Administration, however, has called on

Congress to send the President a GHG cap-and-trade program

this year and also seeks to bind the United States to

emissions cuts in the international context at the United

Nations Climate Change Convention, in Copenhagen which came

to a close at the time of writing (December, 2009). 30

While climate change legislation is necessary, efforts to

regulate climate change through the Clean Air Act and

public nuisances suits serve as important stepping-stones.

These efforts are helpful because they impose some costs on

27See Peter Glaser & John Cline supra note 25 (describing various

patchwork requirements for businesses that rise from lack of specificlaws regarding GHG emissions).28

29

30See generally Robert L. Hines & Farella Braun, Looking to the UN

Climate Change Convention in Copenhagen: Upcoming Developments in theClimate Change Policy Arena, 2009 WL 2974776 (Sept. 2009) (providingbackground on the UN Climate Change Convention). See also CopenhagenAccord, Draft Decision /CP.15, United Nations Framework Convention ofClimate Change, Dec. 18, 2009,http://www.eenews.net/public/25/13656/features/documents/2009/12/19/document_gw_01.pdf (resulting accord from the conference).

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emitting GHGs as well as bring public attention to the

climate change and its greatest exacerbaters. Regulation

and tort suits will set the stage for comprehensive

legislation tailored to climate change and a true closing

on the new social contract.

This article will explore current governmental efforts

in combating climate change by first examining the proposed

endangerment finding from the Obama Administrations

Environmental Protection Agency spurred by the landmark

Massachusetts v. EPA 31 decision, second, the recent public

nuisance case decisions within the federal appellate

courts, and finally, the legislation recently passed in the

House of Representatives and currently making its way

through the Senate.

This article will evaluate and compare these efforts as

well as look at their implications and interrelations with

each other. It is critical that emerging social contract

continue to develop to a point where the citizen-consumer,

industry and the government have mutually reinforcing

commitments to combating climate change. This article

concludes that while regulations and public nuisance cases

are helpful in the short-term and will spur congressional

action, the citizen-consumer and industry must make it

31549 U.S. 497 (2007).

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politically impossible for elected officials to survive

without passing comprehensive legislation tailored to

climate change.

II. Existing Federal Statutes and the Executive Branch

[C]limate change is serious, it is urgent, and it isgrowing. Our generation's response to thischallenge will be judged by history, for if we failto meet it, boldly, swiftly, and together, we riskconsigning future generations to an irreversiblecatastrophe. President Barack Obama 32

A number of conditions are pushing the Executive

Branch to use the statutes and tools at their disposal to

regulate GHGs. First, President Barack Obama pledged

during his campaign that he would classify carbon dioxide

as a dangerous pollutant and tell EPA that it may use the

1990 Clean Air Act to set emissions limits. 33 The election

of President Obama is seen as both a cause and an effect of

an emerging sense of social responsibility among the

American public. 34 The Administration is committed to

upholding its campaign promises. 35 Second, even if Congress

32Barack Obama, President of the United States, United Nations Climate

Change Summit, (Sept. 22, 2009).33

See Brigham Daniels et al., Regulating Climate: What Role for theClean Act?, A Primer: Background Paper for a Conference Co-Sponsored byDuke Law, Harvard Law School and the Dukes Nicholas Institute, (Mar.30, 2009) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1370565

(summarizing evolution of using CAA to regulate GHGs and providinginsight into the factors EPA will need to consider).34

See Richard Stengel supra note 25 (discussing that Obamascapitalization on social responsibility during his campaign andsubsequent furthering of the agenda during his presidency).35

See John M. Broder, Obama Affirms Climate Change Goals, N.Y. Times ,Nov. 18, 2008,http://www.nytimes.com/2008/11/19/us/politics/19climate.html .(discussing Obamas commitment to reducing emissions). My presidencywill mark a new chapter in Americas leadership on climate change that

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passes comprehensive climate legislation, the rulemaking

process could push compliance off for several years,

leaving a critical short-term gap that Congress cannot

address. 36 The Obama Administration was also trying to

compile a domestic record of accomplishments as it headed

into the U.N. climate negotiations in Copenhagen this

December with more than 180 other countries where U.S.

leadership was seen as critical to crafting an interim

political deal and a promise to reconvene next year to

write a successor to the 1997 Kyoto Protocol. 37

Additionally, the Massachusetts v. EPA decision, discussed

below, places major constraints on the ability of the EPA

to refuse to regulate GHGs. So, it is under the pressure

of the American public, international community, the courts

and a slow moving legislative system, that the Executive

Branch has trudged forward.

a. Massachusetts v. EPA

Any discussion of current climate law must begin with

the Supreme Courts seminal 2007 5-4 decision in

will strengthen our security and create millions of new jobs in the

process, Mr. Obama said. Id.36 See E. Adams Miller, Coordinating Government Agency Involvement inClimate Change Issues, 2009 WL 1342291 at 6 (Apr. 2009) (emphasizingthat despite any new climate change legislation CAA could imposecritical short-term compliance obligations).37

See John M. Broder, Obama Shifts His Visit to Last Day of ClimateConference, NY Times , Dec. 5, 2009 at A7. President Obama will attendthe conference on December 18, 2009 with the hopes of concluding ameaningful Copenhagen accord in which all countries pledged to takeimmediate action on climate change. Id.

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Massachusetts v. EPA . 38 The case arose from a petition

filed by a number of organizations in 1999 requesting that

the EPA regulate GHG emissions from new motor vehicles

pursuant to Section 202(a) of the Clean Air Act (CAA). 39

The EPA denied the petition, stating that it did not have

authority under the CAA to issue mandatory regulations to

address global warming and that, even if they did, it would

be inappropriate to do so at that time. 40 The Court

reversed EPAs decision and remanded it back to the

agency. 41 The Court found that carbon dioxide was an air

pollutant under the broad definition provided for in the

CAA, and that therefore Section 202(a)(1) of the CAA

allowed for regulation of carbon dioxide emissions from new

motor vehicles. 42

The Court found that Massachusetts had standing to

38See generally Lisa Heinzerling, Massachusetts v. EPA, 22 J. Envtl. L.

& Litig. 301 (2007). See also Elise Korican, Massachusetts v.Environmental Protection Agency, Exploring the Merits of Greenhouse GasRegulation, 29 J. Natl Assn Admin L. Judiciary 193 (Spring 2008).39

Clean Air Act (CAA) 202(a)(1), 42 U.S.C. 7521(a)(1) (2000).International Center for Technology Assessment, et al., Petition forRulemaking and Collateral Relief Seeking the Regulation of GreenhouseGas Emissions from New Motor Vehicles under Section 202 of the CleanAir Act, Oct. 20, 1999, available at:http://www.icta.org/doc/ghgpet2.pdf.40

Control of Emissions from New Highway Vehicles and Engines, 68 Fed.Reg. 52922 (Sept. 8, 2003).41

Massachusetts v. EPA, 127 S. Ct. 1438, 1463 (U.S. 2007).42

Id. at 1459. The Court states that the statutes repeated use of theword any when describing the air pollutants the EPA is authorized toregulate means that Congress intent was very broad and covered GHGs.Id. at 1460.

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pursue its claim. 43 The Court rejected the EPAs reliance

on policy considerations as outside the statutory framework

of the CAA and required the EPA to go through the

regulatory process defined by the language of the CAA. 44

The Court instructed the Administrator to determine whether

or not emissions of GHGs from new motor vehicles cause or

contribute to air pollution, which may reasonably be

anticipated to endanger public health or welfare, or

whether the science is too uncertain to make a reasoned

decision. 45

b. Endangerment Finding

The Bush Administration suppressed a draft EPA

endangerment finding and delayed any action in response to

the Courts decision until July 2008, when the EPA issued

an Advanced Notice of Proposed Rulemaking for Regulating

Greenhouse Gas Emissions Under the Clean Air Act. 46 This

notice, however, was merely a scoping document, and the EPA

43Id. at 1453-55. Massachusetts, having a majority of its borders on

the sea, has a particular injury in that the state has a sovereigninterest in protecting its land from rising sea levels resulting fromGHG emissions. Id.44

Id. at 1462. EPAs judgment is to be exercised with respect to anair pollutants possible harm to the health and welfare of the public,not just a discretionary exercise of judgment for any reason. Id.45

Id.46

See Draft Outline of Summary of Proposed Endangerment Finding in thePreamble, Dec. 5, 2007http://www.eenews.net/public/25/12762/features/documents/2009/10/13/document_pm_04.pdf (released through Freedom of Information Request onOctober 13, 2009). See also Advanced Notice of Proposed Rulemaking, 73FR 44, 354 (July 30, 2008).

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allowed for an exceptionally long comment period, thereby

running out the Administrations term before any

significant action was taken. 47

The Obama Administration came to office with a promise

to address climate change, and indicated early in its term

that it would comply with the law and science and move

forward with the endangerment finding. 48 It upheld that

promise on April 17, 2009 issuing the Proposed

Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) of the Clean Air

Act. 49

EPA Administrator Lisa Jackson proposed to find that

GHGs in the atmosphere endanger the public health and

welfare of current and future generations. 50 She further

47See Letter Regarding Extension of ANPR Time Period, Nov. 14, 2008,

http://www.epa.gov/climatechange/emissions/downloads/NAMletter.pdf (EPAallowed a 120-day comment period, which expired on November 28, 2008).48

See Darren Samuelsohn, Obama Prefers Congress to EPA in TacklingClimate Browner, NY Times , Feb. 23, 2009,http://www.nytimes.com/cwire/2009/02/23/23climatewire-obama-prefers-congress-to-epa-when-it-comes-t-9800.html (explaining that whilePresident prefers legislative action his Administration will moveforward regardless). "The president continues to believe the best pathforward is through legislation, rather than through sort of the weavingtogether the various authorities of the Clean Air Act, which may or maynot end in a cap-and-trade program," Carol Browner told the Western

Governors Association during its winter meetings in Washingtonyesterday. "You can get the clearest instruction by passinglegislation." Id.49

See 74 FR 18886 (Apr. 24, 2009) hereinafter Proposed Rule.50

See Id. at 18887-88. The Administrator proposed making this findingwith respect to six greenhouse gases: carbon dioxide, methane, nitrousoxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. Id.at 18888. EPA relied heavily on reports from both theIntergovernmental Panel on Climate Change (IPCC) and the U.S. ClimateChange Science Program (CCSP). Id. at 18894.

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found that the U.S. transportation sector is a significant

contributor to total U.S. and global emissions of GHGs,

accounting for twenty-four percent of U.S. GHG emissions in

2006. In anticipation of likely litigation, the

Administrator tied her reasoning closely to the statutory

language as required by Massachusetts v. EPA . CAA Section

202(a)(1) provides:

The Administrator shall by regulation prescribe standards applicable to the emission of any airpollutant , which in his judgment cause, orcontribute to, air pollution, which may reasonably beanticipated to endanger public health or welfare. 51

The Administrator first explained in the Proposed Rule that

reasonably anticipate requires her to act to prevent harm

in conditions of uncertainty. 52 Second, cause or

contribute indicates that a lower threshold than a finding

that such emissions are the sole or major cause is a

sufficient basis to make the required finding. 53 Finally

in [her] judgment authorizes the Administrator to weigh

risks and to consider projections of future possibilities. 54

Building on the proposed endangerment finding, the EPA

has issued a flurry of proposed rules, including one final

rule. I am proud to say that the United States has done

more to promote clean energy and reduce carbon pollution in51

Clean Air Act (CAA) 202(a)(1), 42 U.S.C. 7521(a)(1) (2000).52

See Proposed Rule at 18890.53

See Id. at 18891.54

See Id.

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the last eight months than at any time in our history,

President Obama announced at United Nations climate change

summit. 55

On September 15, 2009, the EPA issued a proposed rule

jointly with the National Highway Traffic Safety

Administration (NHTSA), that would mandate increased fuel

economy and impose the first-ever GHG standards under the

CAA on the nations passenger cars, light-duty trucks and

medium-duty passenger vehicles. 56 The rule covers vehicles

starting with model year 2012 and will push fuel economy

standards to 35.3 miles per gallon by 2016. 57 This proposed

rule blends the legal authority found by the Supreme Court

in Massachusetts v. EPA with the NHTSAs right to regulate

fuel economy under the Corporate Average Fuel Economy

standards. 58

55Barack Obama, President of the United States, United Nations Climate

Change Summit, (Sept. 22, 2009).56

Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse GasEmission Standards and Corporate Average Fuel Economy Standards 74 FR 49454 (Sept. 28, 2009). See also Tom Doggett, EPA CO2 EndangermentFinding to the White House, Reuters , Nov. 9, 2009. The final rule wassent to the White House Office of Management and Budget along with thefinal endangerment finding. Id.57

See generally Environmental Protection Agency, Fact Sheet: EPA and NHTSA Propose Historic National Program to Reduce Greenhouse Gases and

Improve Fuel Economy for Cars and Trucks,http://epa.gov/otaq/climate/regulations/420f09047a.pdf.58

See Josh Voorhees, White House Rolls Out Details of Auto FuelEconomy, Emissions Standards, NY Times , Sept. 15, 2009,http://www.nytimes.com/gwire/2009/09/15/15greenwire-white-house-rolls-out-details-of-auto-fuel-eco-13342.html. This rule still preservesCalifornias right to regulate air pollution under the CAA granted June30, 2009 for cars beginning with model year 2009. Id. See CaliforniaState Motor Vehicle Pollution Control Standards; Notice of DecisionGranting a Waiver of Clean Air Act Preemption for California's 2009 and

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On September 22, 2009, the EPA announced a final rule

that will require GHG emitters above a certain threshold to

begin monitoring and reporting emissions. 59 The program

will begin on January 1, 2010, and will cover 10,000

facilities responsible for emitting approximately eighty-

five percent of the nations GHG emissions. 60 The program

will allow for a better understanding of where GHG

emissions are coming from and will guide the development of

programs to reduce emissions. 61 The first emissions reports

will be due March 2011. 62 Many experts argue that public

release of data revealing the top U.S. industrial sources

of GHG emissions will spur innovation and voluntary cuts in

emissions. 63

On September 30, 2009, the EPA issued a proposed rule

Subsequent Model Year Greenhouse Gas Emission Standards for New MotorVehicles, 74 FR 32744 (July 8, 2009). See also Clean Air Act (CAA) 209, 42 U.S.C. 7543 (1990).59

See Mandatory Reporting of Greenhouse Gases, 74 FR 56260 (Oct. 30,2009). Fossil fuel and industrial GHG suppliers, motor vehicle andengine manufacturers, and facilities that emit 25,000 metric tons ormore of carbon dioxide equivalent per year will be required to reportGHG emissions data to EPA annually. Id.60

See Grace Kurdian, EPA Issues Final Mandatory GHG Reporting Rule,McCarter & English LLP, Climate Law Blog, (Sept. 24, 2009). There areincentives for facilities to reduce their emissions below certainlevels because of a system of triggers that allow entities to leave themonitoring and reporting program. Id.61

See Environmental Protection Agency Press Release, EPA Finalizes theNations First Greenhouse Gas Reporting System/Monitoring to Begin2010, Sept. 22, 2009.62

74 FR 56260 at 56267.63

See Robin Bravender, EPA Air Chief Says Carbon Registry Could SpurEmissions Cuts, NY Times , Oct. 13, 2009. "No company is going to wantto be on the top 100 emitters, and they are going to make every effortthey can to reduce their emissions. Id.

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and reconsideration of a 2008 memorandum from then-EPA

Administrator Stephen L. Johnson. 64 The memorandum asserted

that the government should not regulate carbon dioxide

emissions from new coal-fired power plants. 65 The

reconsideration requests comment on interpretations of when

a pollutant is subject to regulation under the CAA for

purposes of triggering the requirement to get a Prevention

of Significant Deterioration (PSD) permit. 66 A PSD permit

is required before a new industrial facility can be built

or an existing facility can expand in any way that

increases emissions. 67 EPA's preferred interpretation is

that PSD is triggered when a pollutant is subject to

emissions limits under a final national rule, such as the

64Prevention of Significant Deterioration (PSD): Reconsideration of

Interpretation of Regulations That Determine Pollutants Covered by theFederal PSD Permit Program, 74 FR 51535 (Oct. 7, 2009) (hereinafterPSD Reconsideration)65

Stephen Jackson, Memorandum: EPAs Interpretation of Regulations thatDetermine Pollutants Covered By Federal Prevention of SignificantDeterioration (PSD) Permit Program, Dec. 18, 2008,http://epa.gov/nsr/documents/psd_interpretive_memo_12.18.08.pdf . TheMemo was necessary after issues were raised regarding the scope ofpollutants that should be addressed in PSD permitting actions followingthe Supreme Court's decision in Massachustts v. EPA . PSDReconsideration, 74 FR at 51537.66

PSD Reconsideration, 74 FR 51535 at 51545.67

See generally Environmental Protection Agency Website, Air Permits:Overview of the Prevention of Significant Deterioration Program,http://yosemite.epa.gov/r10/AIRPAGE.NSF. A PSD permit is a legaldocument that limits the amount of air pollution that may be releasedby a source. A PSD permit is required before a "major" new sourceconstructs, or before changes or modifications that are "major" or"significant" are made at an existing "major" source of air pollution.EPA or the designated permitting authority may issue the permit. Thepermit specifies what construction is allowed, what emission limitsmust be met, and often how the equipment that is causing the airpollution must be operated. Id

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proposed GHG emissions limits for vehicles. 68

The same day, the EPA proposed a rule to require large

facilities emitting over 25,000 tons of GHGs a year to

obtain a PSD permit. 69 The statutory thresholds requiring

facilities to obtain permits and demonstrate that they are

using the best practices and technologies to minimize

emissions are between 100 and 250 tons per year. 70 Many

were concerned that, if the proposed fuel-economy rules to

regulate GHGs took effect in the spring of 2010, floods of

small businesses would automatically be required to obtain

CAA permits. 71 The EPAs proposed tailoring rule will

shield these smaller sources from regulation, however,

there is some dispute regarding whether the EPA is legally

allowed to do this. 72 While some say that this is a common

sense rule that will utilize the EPAs scarce resources to

maximum effect, others argue that the proposed rule

incorrectly assumes that one industrys emissions are worse

68PSD Reconsideration, 74 FR 51535 at 51541.

69Prevention of Significant Deterioration and Title V Greenhouse Gas

Tailoring Rule, 74 FR 55292 (Oct. 27, 2009).70

EPA Fact Sheet, Proposed Rule: Prevention of Significant

Deterioration and Title V Greenhouse Gas Tailoring Rulehttp://www.epa.gov/NSR/fs20090930action.html.71

See Peter Glaser and John Cline supra note at 25 (citing United StatesChamber of Commerce, A Regulatory Burden: The Compliance Dimension ofRegulating CO2 as a Pollutant (Sept. 2008)http://www.uschamber.com/assets/env/regulatory_burden0809.pdf). DavidRoberts, What Todays EPA Announcement Did (and Did Not) Say, Grist ,Sept. 30, 2009, http://www.grist.org/article/2009-09-30-what-todays-epa-announcement-did-and-did-not-say/.72

See David Roberts supra note 71.

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than others and that the EPA lacks the legal authority to

categorically exempt sources that exceed the CAAs major

source threshold from permitting requirements. 73

Additionally, the permits issued pursuant to the proposed

rule will require use of Best Available Control Technology,

which has not yet been defined for GHGs and will

undoubtedly be a contentious fight. 74

c. CAAs Possible Role in Regulating Greenhouse Gases

Regulation of GHGs is particularly problematic because

the modern world relies almost entirely on the burning of

fossil fuels for its energy. 75 Carbon dioxide is a by-

product of burning fossil fuels, therefore the only way to

prevent the effects of carbon dioxide is either to stop

using fossil fuels or to capture and sequester the carbon

dioxide before it is released into the atmosphere. 76 Either

way it is necessary to force an economy wide technological

revolution focused on sustainability. 77

The CAA was not enacted with a problem the magnitude73

See John M. Broder, EPA Moves to Curtail Greenhouse Gas Emissions, NYTimes , Sept. 30, 2009 (describing response to proposed rule).74

See David Roberts supra note 71.75 See Arnold W. Reitze, Jr., Federal Control of Carbon DioxideEmissions: What are the Options?, 36 B.C. Envtl. Aff. L. Rev. 1, 3(2009).76

Id.77

Id. at 19, See also John Dernbach supra note at 25. The core premiseof sustainable development is that environmental degradation underminesor limits economic development, social well-being, and security. Id.Actions that improve environmental quality can also foster economicgrowth, social development, peace and security. Id.

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of global warming in mind and many argue that it is

therefore cumbersome and poorly tailored for GHGs. 78 The

endangerment finding triggers a nondiscretionary duty to

regulate GHGs from other sources. 79 The most significant of

program, which would be triggered by an endangerment

finding, is the establishment of national ambient air

quality standards (NAAQS). 80 The uniform concentration of

GHGs in the atmosphere would render implementation of the

NAAQS standards difficult because compliance is judged by

the pollutant concentration in the ambient air. 81 Generally

regions are designated either attainment or nonattainment

and charged with coming into or maintaining attainment but

with uniform GHG the entire country would be equally in

nonattainment. 82 Also, the EPA is not permitted to consider

costs in setting the NAAQS, which presents problems due to

the infancy of renewable energy and sequestration

technology. 83

Others maintain however, that even though the NAAQS

78See E. Adams Miller supra note at 3.

79See Raymond B. Ludwiszewski and Charles H. Haake, A Heat Wave of New

Federal Regulation and Legislation, 56 Fed. Law. 31, 36 (June 2009).80

Id. See also Allison B. Rumsey, EPAs Endangerment Finding Serves asa Spur to Congressional Action, 40 NO. 5 ABA Trends 1, 11 (May/June2009). Other areas that include endangerment language triggeringregulation are sections of the CAA applicable to fuels, fuel additives,non-road engine and aircraft engines. Id.81

See Raymond B. Ludwiszewski and Charles H. Haake supra note 79.82

See Brigham Daniels supra note 33.83

See Id. CAA 109, 42 U.S.C. 7409 (2008).

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provisions do not appear to work for GHGs, the CAA and its

State Implementation Plan program would be well suited to

compel the behavioral changes necessary to combat global

warming. 84 Further, the state and local planning and

implementation programs are already in place and would

provide the structure necessary for a GHG regulation

program. 85 States are able to recognize local politics,

variations and practical opportunities, additionally,

multiple state programs will provide the ability for states

to learn from one another. 86

d. Other Statutes

While the CAA is the most obvious candidate for

regulating GHGs, many advocates and policy makers are

taking creative and innovative steps and utilizing other

environmental statutes in an attempt to combat climate

change. The National Environmental Policy Act (NEPA)

requires the preparation of an Environmental Impact

Statement for major federal actions affecting the quality

of the human environment. 87 The purpose of NEPA is to84

See Holly Doremus and W. Michael Hanemann, Of Babies and Bathwater:Why the Clean Air Act Cooperative Federalism Framework is Useful forAddressing Global Warming, 50 Ariz. L. Rev. 799 (2008). In order totake over compliance with the CAA states must submit a StateImplementation Plan (SIP) to the EPA for approval. Id. Programsparticularly adept to local control are land use, development patternsand infrastructure patterns. Id.85

Id.86

Id. at 823. Today every state in the country has adopted some kind oflaw or policy to deal with climate change. Id.87

National Environmental Policy, 42 U.S.C. 4321

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(ESA) to protect the species and mitigate GHG emissions

as populations of species are declining due to climate

changes. 90 Climate change forces species to migrate and

adapt faster than they are capable of to increasing water

and air temperatures, changes in water salinity,

precipitation, pests, snow pack and other factors. 91 Early

successes include endangered listings for elkhorn and

staghorn corals as well as a threatened listing for polar

bears. 92 Many petitions to list species as threatened or

endangered due to climate are currently pending. 93

The CBD has also charged forward under the Clean Water

Act (CWA). 94 The oceans are the worlds largest carbon

90Endangered Species Act, 16 U.S.C. 1531 (1973). See Center for

Biological Diversity, Global Warming and Endangered Species Initiative,http://www.biologicaldiversity.org/campaigns/global_warming_and_endangered_species/index.html.91

See generally, Brendan R. Cummings & Kassie R. Siegel, UrsusMaritimus: Polar Bears on Thin Ice, 22 Nat. Resources & Envt 3 (2007-2008). See also J.B. Ruhl, Climate Change and the Endangered SpeciesAct: Building Bridges to the No-Analog Future, 88 B.U. L. Rev. 1(2008). See also J.B. Ruhl, Keeping the Endangered Species ActRelevant, 19 Duke Envtl. L. & Pol'y F. 275 (2008-2009).92

See Latham &Watkins, LLP, Client Alert: The Endangered Species Actand Global Climate Change: Potential Ramifications of the Polar BearListing, http://www.lw.com/Resources.aspx?page=ClientAlertDetail&publication=2199 (explaining history of ESA,listings and effects of increased suits regarding the ESA).93

Climate Law Institute, Center for Biological Diversity,http://www.biologicaldiversity.org/programs/climate_law_institute/index

.html . Actions have been taken and are pending for the followingspecies through the Center for Biological Diversity: American pika ,fox, Ashy, Bearded, Bowhead, Cook, Caribbean, Cutlets PacificPenguins, Polar, Ribbon, Ringed, Spectacled, Spotted, Stillers, andYellow94

See generally Center for Biological Diversity, Ocean AcidificationCampaign,http://www.biologicaldiversity.org/campaigns/ocean_acidification/index.html.

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sinks and have dissolved one-third of the carbon dioxide

emitted from the burning of fossil fuel. 95 This has

increased the acidity of the ocean by thirty percent in the

last 250 years leading to a host of water quality issues. 96

In December of 2007, the CBD petitioned the EPA to impose

stricter pH standards for ocean water quality and publish

guidance to help states protect U.S. waters from ocean

acidification. 97 On April 15, 2009, the EPA published a

Notice of Data Availability to provide information

regarding ocean acidification and solicit additional

pertinent data or scientific information that may be useful

in addressing ocean acidification. 98 The Notice also

reflected the EPAs intent to review the current aquatic

life criterion for marine pH to determine if a revision is

warranted to protect the marine designated uses of states

and territories pursuant to the CWA. 99 A final decision

will be made by April 15, 2010. 100

95See generally, Robin Kundis Craig, Climate Change Comes to the Clean

Water Act: Now What?, FSU College of Law, Public Law Research Paper No.363, available at SSRN: http://ssrn.com/abstract=1366065 ,(Mar. 20,2009). 1 Wash & Lee J. of Energy, Climate & Envt. __ (forthcoming 2010).96

Id.97 Petition For Revised pH Water Quality Criteria Under Section 304 OfThe Clean Water Act, 33 U.S.C. 1314, To AddressOcean Acidification, (Dec. 18, 2007) available athttp://www.biologicaldiversity.org/programs/oceans/pdfs/section-304-petition-12-18-07.pdf.98

Ocean Acidification and Marine pH Water Quality Criteria, Notice ofData Availability, 74 FR 17484 (Apr. 15, 2009).99

Id.100

Id.

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III. Litigation

While the legislative and executive branches are taking

steps toward a climate change solution no comprehensive

regulations or legislation are currently in place.

Therefore, environmental attorneys are attempting to

address climate change and rampant GHG emissions in the

courts.

a. Public Nuisance

Attorneys are creatively employing a variety of

statutes in their complaints. Recently however the greatest

strides have come using the federal common law doctrine of

public nuisance. 101 The Restatement (Second) of Torts

821(B)(1) defines a public nuisance as an unreasonable

interference with a right common to the general public. 102

The doctrine is grounded in the rights of states who by

their union to the nation relinquished their ability to

forcibly abate outside nuisances but did not give up their

right to within courts make reasonable demands with respect

to their quasi-sovereign interests. 103

In a public nuisance suit, the defendant need not101 See generally David A. Grossman, Warming up to a Not-So-RadicalIdea: Tort-Based Climate Change Litigation, 28 Colum. J. Envtl. L. 1(2003).102

Restatement (Second) of Torts 821B(1)(1979). In re Osewego BargeCorp., 664 F.2d 327, 332 n.5 (2d Cir. 1981).103

Matthew F. Pawa, Global Warming: The Ultimate Public Nuisance, 39Envtl. L. Rep. News & Analysis 10230, 10239 (Mar. 2009) (explainingpublic nuisance doctrine allows states to defend themselves againstharmful activity that crosses state borders).

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create the nuisance but rather need only contribute to the

nuisance in order to be liable. 104 This is important to

global warming cases due to the nature of GHG emissions and

their vast number of sources and their equal effect

worldwide once emitted. 105

Three public nuisance cases against GHG emitting

facilities have recently been decided, two at the appeals

level and one at the district court.

i. Connecticut v. American Electric Power 106

In this matter plaintiffs sought an injunction curbing

the carbon dioxide emissions from defendants, six major

power producers. 107 They claimed that defendants combined

annual emissions were over 650 million tons of carbon

dioxide, which contributed to global warming and

constituted a public nuisance. 108

The district court dismissed the case on September 19,

2005 on grounds that the claims were non-justiciable

political questions because adjudication of plaintiffs104

Id. at 10241 (citing Cox v. City of Dallas, 256 F.3d 281, 292 (5 thCir. 2001), City of New York v. Beretta U.S.A Corp., 315 F. Supp. 2d256, 281 (E.D.N.Y 2004)).105

See supra note 22.106 2009 U.S. App. LEXIS 20873 (2d Cir. 2009).107

Id. at 3. Plaintiffs include the States of Connecticut, New York,California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, theCity of New York, Open Space Institute, Inc., Open Space Conservancy,Inc. and the Audubon Society of New Hampshire. Id. at 6 Defendantsinclude American Electric Power Co. Inc., American Electric PowerService Corp., Southern Co., Tennessee Valley Authority, Xcel Energy,Inc. and Cinergy Corp. Id.108

Id. at 3.

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claims would require the court to make wide-sweeping policy

determinations that are more appropriately addressed by the

political branches. 109 On appeal the Second Circuit reversed

the district court and concluded that the case did not

present non-justiciable political questions that the

plaintiffs had stated claims under federal common law of

nuisance, and, finally, that plaintiffs claims were not

preempted by either EPA regulation or Congressional

action. 110

The Second Circuit concluded that a case with

political implications does not necessarily present a non-

justiciable political question. 111 Defendants

characterization of this lawsuit as implicating complex,

inter-related and far-reaching policy questions about

causes of global climate change and the most appropriate

response to it magnifies to the outer limits the discrete

nuisance issues actually presented. 112 The plaintiffs were

not asking for a broad solution to climate change the

complaint merely presented a nuisance claim which the court

stated, fell within a long line of federal common law

nuisance cases where federal courts employed familiar

109Id. at 14-15, 18.

110Id. at 235.

1112009 U.S. App. LEXIS 20873 at 23 (citing U.S. Dept of Commerce v.

Montana, 503 U.S. 442, 458 (1992)).112

Id at 31.

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public nuisance precepts, grappled with complex scientific

evidence, and resolved the issues presented based on a

fully developed record. 113

The Second Circuit then went on to find that all

plaintiffs, states, municipalities and private non-profits,

had standing to assert their nuisance claims. 114 Under the

Lujan v. Defenders of Wildlife 115 standing requirements, the

court first held that all plaintiffs sufficiently alleged

an injury-in-fact, finding the parties alleged concrete,

particularized and current or imminent injuries. 116 Second,

the alleged injury of global warming was fairly traceable

to the volume of carbon dioxide defendants emitted. 117

Third, the court found that the alleged injuries were

113

Id. at 32, 39-40.114 Id. at 105.115

505 U.S. 555, 560-61 (1992).116

Lujan v. Defenders of Wildlife, 505 U.S. 555, 560-61. The Lujan testfor standing: The plaintiff must first have suffered an injury in factwhich is defined as an invasion of a legally protected interest, whichis concrete and particularized and actual or imminent, not conjecturalor hypothetical. Id. Second, there must be a causal connection betweenthe injury and conduct complained of. Id. Third it must be likely, asopposed to merely speculative, that the injury will be redressed by afavorable decision. Id. Current injuries the court finds includethe reduced size of the California snowpack, which will lead todeclining water supply and flooding due to earlier melting. 2009 U.S.

App. LEXIS 20873 at 81-82. Future injuries include a rise in sealevel, which will cause flooding and harm coastal infrastructure aswell as rising temperatures, which will threaten agriculture andecosystems. Id. at 82-83.117

2009 U.S. App. LEXIS 20873 at 99 -100. Court states that for thepurposes of Article III standing plaintiffs are not required topinpoint which specific injuries are tied to which defendants or showthat defendants alone caused their injuries. Id. at 100. The courtfinds it sufficient that defendants emissions contribute toplaintiffs injuries. Id.

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redressable because defendants reduction of emissions

would provide some relief. 118

Next, the court found that plaintiffs had pleaded an

unreasonable interference with a right common to the

general public and had thus stated a sufficient public

nuisance claim. 119

Finally, the Second Circuit found that, Congress

refusal to regulate GHG emissions and the EPA endangerment

finding, do no not preclude judicial action. 120 The court

stated, Congresss mere refusal to legislate falls far

short of an expression of legislative intent to supplant

the existing common law in that area. 121 Further, the

proposed endangerment finding from the EPA does not impose

118Id. 103 -104. Reduction in emissions need not reverse global

warming it is sufficient to show that the requested remedy would slowor reduce it. (citing Massachusetts v. EPA, 549 U.S. 497 at 525(2007)).119

Id. at 115. Plaintiffs claim that Defendants emissions bycontributing to global warming constitute a substantial andunreasonable interference with public rights in the plaintiffsjurisdictions, including inter alia , the right to public comfort andsafety, the right to protection of vital natural resources and publicproperty, and the right to use, enjoy and preserve the aesthetic andecological values of the natural world. Id. The court states thatthese claims properly allege unreasonable interference. Id. The courtstates that the City of New York has a valid claim citing cases, whichhold that a municipality could assert a claim under the federal common

law of nuisance. Id. at 137 (citing City of Evansville v. KentuckyLiquid Recycling, Inc., 604 F.2d 1008, 1018-19 (7 th Cir. 1979)). Thetrusts also have a valid claim as the court noted that in order to givefull effect to the federal common law of nuisance, private partiesshould be permitted, and encouraged, to participate in the abatement ofnuisances. Id. at 147 (citing National Sea Clammers Assn v. City ofNew York, 616 F.2d 1222, 1233 (3d Cir. 1980)).120

Id. at 221121

Id. at 216 (citing County of Oneida v. Oneida Indian Nation of N.Y.State, 470 U.S. 226 at 235-40 (1985)).

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ii. Native Village of Kivalina v. ExxonMobil

Corporation 128

On September 30, 2009, the District Court for the

Northern District of California granted defendants motion

to dismiss for lack of subject matter jurisdiction. 129 In

this case, plaintiffs sought damages from defendants under

a federal common law claim of nuisance due to their

excessive emission of GHGs, which have caused global

warming. 130 Plaintiffs claim that as a result of global

warming the Arctic sea ice that protects the City of

Kivalina, Alaska, from winter storms had diminished and

that the resulting erosion and destruction will require

Kivalina citizens to relocate. 131

The district court relied heavily on Baker v. Carr 132 ,

which sets forth six independent factors, which may assist

in determining whether there is a non-justiciable political

Admissible Evidence?, 34 L itigation 3 (Spring 2008),http://www.globalclimatelaw.com/uploads/file/LitMag_Spring08_Keteltas.pdf . Courts often reject regulatory findings and projections in provingtort damages because an agencies threshold of proof is reasonably lowerthan that appropriate in tort law, which traditionally makes more

particularized inquiries into cause and effect and requires a plaintiffto prove that it is more likely than not than another individual hascause him or her harm. Id. (citing Allen v. Pennsylvania EngineeringCorp., 102 F.3d 194, 198 (5 th Cir. 1996)).128

2009 WL 3326113 (N.D. Cal. 2009).129

Id. at 15.130

Id. at 1.131

Id. at 1.132

369 U.S. 186, 210 (1962).

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question. 133 The court focused on two of the factors. 134 The

court began by inquiring at to whether there is a lack of

judicially discoverable and manageable standards for

resolving the matter. 135 The court found that, contrary to

plaintiffs argument that evaluation of a nuisance claim is

focused on the unreasonableness of the harm, the proper

inquiry involves a balancing of the utility and benefit of

the alleged nuisance against the harm caused. 136 The court

rejected the Second Circuits finding in Connecticut v.

American Electric Power that federal courts are competent

to deal with these issues, stating that while principles of

tort and public nuisance law may provide sufficient

guidance in some novel cases, this is not one of them. 137

The court stated that, due to the fact that this claim is

on a scale unlike any prior environmental case, the court

does not have sufficient guidance to enable it to reach a

resolution in a reasoned manner. 138

1332009 WL 3326113 at 4 (citing Baker v. Carr, 369 U.S. 186, 210

(1962)).134

Id. at 5 (explaining that any one of the Baker factors may bedispositive).135

Id. at 6 (explaining that analysis requires determining whetherjudiciary is granting relief in a reasoned fashion versus allowing theclaim to proceed such that they merely provide hope without substantivelegal basis for ruling).136

Id. at 7 (explaining that this inquiry would require considerationof energy alternatives available in the past and then weigh the choicesmade against the risk that GHG emission would lead to flooding in aremote Alaskan village).137

Id. at 8-9.138

2009 WL 3326113 at 9.

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The second Baker v. Carr factor the court relied on

was whether it would be impossible for the judiciary to

decide the case without an initial policy determination of

a kind clearly for non-judicial discretion. 139 The court

claimed that it would have to determine what would have

been an acceptable limit on the GHG emissions by defendants

and make a policy decision about who should bear the cost

of global warming. 140

In addition to concluding plaintiffs lacked standing

based on the political question doctrine, the court further

found that they lacked standing based on their inability to

establish causation under Article III. 141 The court held

that plaintiffs failed to sufficiently demonstrate that the

cause of global warming was traceable to the defendants.

The court found troublesome that it is not plausible to

state which emissions-emitted by whom and at what time in

the last several centuries and at what place in the world

caused plaintiffs alleged global warming related

injuries. 142

139Id. at 9 (explaining that this Baker inquiry is aimed at preventing

court from removing an important policy determination from Legislature).140

Id. at 9-10. The court states that allocation of the fault and thecosts of global warming are matters appropriately left fordetermination by the executive or legislative branch in the firstinstance. Id. at 10.141

Id. at 15.142

Id. at 13 (stating that there are multitude of alternative culpritsallegedly responsible for chain of events allegedly leading to erosionof Kivalina).

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sufficiently traceable to the defendants conduct. 147 The

court found that Article III standing is a liberal standard

and that an indirect causal relationship will suffice. 148

The court also relied on Massachusetts v. EPA , which

accepted the link between man-made GHG emissions and global

warming as well as the nexus of a warmer climate and rising

ocean temperatures with the strength of hurricanes. 149

Further the Fifth Circuit rejected reliance on the Baker

v. Carr factors in cases such as this one. 150 The court

stated that, until Congress enacts laws or federal agencies

adopt regulations that will comprehensively govern GHGs,

the common law tort questions posed in this case are

justiciable, not political. 151 Federal courts may not invoke

the political question doctrine to abstain from deciding

politically charged cases. 152 The court stated that its

147Id. at 19-21. Plaintiffs complaint, relying on scientific

reports, alleges a chain of causation between defendants substantialemissions and plaintiffs injuries, and while plaintiffs will berequired to support these assertions at later stages in litigation, atthis pleading stage we must take these allegations as true. Id. at 21(referencing Cf. Bennett, 520 U.S. at 154).148

Id. at 20 (citing Toll Bros. Inc. v. Township of Readington, 555F.3d 131, 142 (3d Cir. 2009)).149

2009 U.S. App. LEXIS 22774 at 22-23 (citing Massachusetts v. EPA,549 U.S. at 521-24).150 Id. at 43. [I]f a party moving to dismiss under the politicalquestion doctrine is unable to identify a constitutional provision orfederal law that arguably commits a material issue in the caseexclusively to a political branch, the issue is clearly justiciable andthe motion should be denied without applying the Baker formulationsId. (referencing Lane v. Halliburton, 529 F.3d 548, 559 (5 th Cir.2008)).151

Id. at 46.152

Id.

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reasoning is fully consistent with the Second Circuits and

agreed that common law tort rules provide long-established

standards for adjudicating the nuisance, trespass and

negligence claims at issue. 153

The Fifth Circuit went even further than the Second

Circuit in terms of damages. While the Second Circuits

decision found state and municipality plaintiffs could

pursue injunctive relief, the Fifth Circuit ruled private

property owners in Mississippi also have standing to pursue

monetary damages. 154

"We now have rulings out of the 2nd Circuit andthe 5th Circuit that, together, represent mountinglegal authority that the Constitution is not abarrier to climate tort litigation," said BruceMyers, a senior attorney with the Environmental LawInstitute. "In fairness to the district court, whichcame out a different way, it's almost as if thelower courts, which have uniformly rejected thesesorts of cases over the last several years, areinsisting that they have a green light from theappeals courts upstairs before opening thecourthouse doors to climate tort cases." 155

These three cases have potentially far-reaching

implications. 156 The decisions will provide precedent and

153Id. at 55-56 n. 15.

154

See Harold M. Blinderman & Adetokundo A. Badejo, Recent ClimateChange Developments and Initiatives, Day Pitney LLP , Nov. 4, 2009,http://www.daypitney.com/news/newsDetail.aspx?pkid=2910 (explaining thedecision opening door for possibility of contingency fees and thereforecopycat suits).155

See Jennifer Koons supra note 143.156

See Second Circuit Decision Opens Door for Federal Tort ActionsSeeking Greenhouse Gas Emissions Caps and Mandatory Reductions,Skadden, Arps, Slate Meagher & Flom LLP & Affiliates , Oct. 2, 2009,http://www.skadden.com/content/Publications/Publications1884_0.pdf.

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catalyst for further climate change tort suits. 157 Even if

plaintiffs are not victorious in these suits they will

force industry defendants to incur substantial litigation

costs. 158 This may lead industry to stop pushing back on EPA

regulations or federal legislation, which would be more

predictable. 159 Further, these cases bring negative

publicity to these companies, who are already attempting to

green up their act to avoid additional public

consequences. 160

I. Legislation

There will be no business as usual after Waxman-Markey or whatever energy bill is eventually passedin Congress, said Donald Carr, a partner atPillsbury Winthrop Shaw Pittman. We are looking atwhat promises to be nothing short of a revolution inenvironment and natural resources law. 161

There are many forces pushing Congress to enact

legislation that will revolutionize the ways in which the

157Id.

158Id.

159Id.

160See Matthew F. Pawa & Benjamin A. Krass, Global Warming as a Public

Nuisance: Connecticut v. American Electric Power , 16 Fordham Envtl. L.Rev. 407 (2004-2005). One of the defendants [in Connecticut v.American Electric Power], Cinergy Corp., subsequently [to the filing ofthe complaint] announced its support for legal regulation of carbon

dioxide emissions, and another, American Electric Power Co., announcedit would build a clean coal plant that can capture and sequester carbondioxide emissions. Another defendant, Xcel Energy, recently joined thePlains CO2 Reduction Partnership to further investigate variousstrategies to reduce carbon dioxide emissions into the atmosphere. Id.at 409.161

Jennifer Koons, Law Firms Prep Clients for Climate PolicyImplications, NY Times , Sept. 18, 2009http://www.nytimes.com/gwire/2009/09/18/18greenwire-law-firms-prep-clients-for-climate-policy-impli-5531.html?=2.

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United States produces and uses energy, the most powerful

of which being a call from the President. In President

Obamas first speech to a joint session of Congress he

asked Congress to send him legislation that places a

market-based cap on carbon pollution and drives the

production of more renewable energy in America. 162 Further

six out of ten Americans support cap-and-trade legislation

and are calling on their representatives to enact such

legislation. 163 Industry is also frustrated by the patchwork

of programs implemented by the states, which makes

compliance difficult for businesses operating in multiple

jurisdictions. 164 Also industry fears regulation by the EPA

and in turn is pressuring Congress to enact comprehensive

and predictable legislation, as explained by Senators John

Kerry and Lindsey Graham:

If Congress does not pass legislation dealing withclimate change, the administration will use the

162Barack Obama, President of the United States, Address to Joint

Session of Congress (Feb. 24, 2009),http://www.whitehouse.gov/the_press_office/Remarks-of-President-Barack-Obama-Address-to-Joint-Session-of-Congress.163

CNN Opinion Research Poll, Oct. 27, 2009http://i2.cdn.turner.com/cnn/2009/images/10/26/rel15j.pdf (findingsixty percent supported cap-and-trade legislation). Ipsos-McLatchey

Poll, Dec.3-6, 2009, http://www.mcclatchydc.com/260/story/80342.html (finding seventy percent believe earth is warming, sixty-one percentbelieve its due to human activity and fifty-two percent would supportcap-and-trade legislation). Washington Post-ABC Poll, Aug. 13-17, 2009,http://www.washingtonpost.com/wp-srv/politics/polls/postpoll_081909.html?sid=ST2009082800547 (findingfifty-seven percent support energy policy being developed in Congressand by the Obama Administration).164

See Richard J. Lazarus supra note 12 at 1191 (discussing businessdesire to avoid state climate change regulation).

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Environmental Protection Agency to impose newregulations. Imposed regulations are likely to betougher and they certainly will not include the jobprotections and investment incentives we areproposingIndustry needs the certainty that comes

with Congressional action.165

On June 26, 2009, the House of Representatives passed

The American Clean Energy and Security Act of 2009

(ACES) by a vote of 219-212. 166 On September 30, 2009

Senators John Kerry and Barbara Boxer introduced the Senate

bill, the Clean Energy Jobs and American Power Act

(CEJAPA). 167 The purpose of the bill is to create clean

energy jobs, reduce pollution, and protect American

security by enhancing domestic energy production and

165John Kerry & Lindsey Graham, Yes We Can (Pass Climate Legislation),

NY Times , Oct. 10, 2009,http://www.nytimes.com/2009/10/11/opinion/11kerrygraham.html . See alsoRebecca Smith & Stephen Power, Some Utilities Push Congress to Act onCarbon Emissions, Wall St. J. , Nov. 9, 2009http://online.wsj.com/article_email/SB125773125612937565-lMyQjAxMDI5NTA3ODcwMzgxWj.html (explaining that business fears withoutlegislation EPA will enact less effective and costlier regulations). Seealso Brian Walsh, EPAs CO2 Finding: Putting a Gun to Congresss Head,Time , Apr. 18, 2009,http://www.time.com/time/health/article/0,8599,1892368,00.html . Itwill be messy, it will be inefficient, and, for many greens, it will bemaddening, but Congress is the right place to hash out our response toglobal warming. The very real and very scary threat of a warming world

which might as well be a gun pointed at our collective head willhave to be enough to motivate them. Id.

166Govtrack.us, H.R. 2454: American Clean Energy and Security Act of

2009 http://www.govtrack.us/congress/bill.xpd?bill=h111-2454 (providingcurrent status of bill).

167See U.S. Senate Press Release, Kerry, Boxer Introduce Clean Energy

Jobs and American Power Act, Sept. 30, 2009http://kerry.senate.gov/cleanenergyjobsandamericanpower/pdf/pressrelease.pdf.

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combating global climate change. 168

There is much debate regarding how to achieve that goal,

whether a tax on carbon or a cap-and-trade program is the

proper method. 169 The bills introduced in the House and

Senate, however, both contemplate the implementation of a

cap-and-trade program. A cap-and-trade program establishes

a fixed amount of emissions that may be released over a set

period of time; this limit is the cap. 170 The government

auctions off the emission allowances to facilities and then

they either purchase additional allowances to meet their

needs or reduce emissions and sell their allowances to

other facilities. 171 This system provides an incentive for

facilities to reduce emissions so they do not need to

purchase additional allowances and can sell their excess

allowances. 172 The program envisages a cost-effective means

of reducing overall emissions without the rigid commands

168Id.

169See Reuven S. Avi-Yonah & David M. Uhlmann, Combating Global Climate

Change: Why a Carbon Tax Is a Better Response to Global Warming ThanCap and Trade, 28 Stan. Envtl. L. J. 3 (2009), 32 Harv. Envtl. L. Rev.294 (2008) (arguing that better response to global climate change wouldbe carbon tax that is adjusted over time to achieve necessaryreductions in carbon dioxide emissions, as well as the correspondingimprovements in alternative energy sources and land and resourcemanagement practices).170

See Brian C. Murray & Heather Hosterman, Climate Change, Cap andTrade and the Outlook for US Policy, 34 N.C.J. Int'l L. & Com. Reg. 699707-08 (2009) (explaining cap-and-trade and how it works as compared tocommand and control methods).171

Id.172

Id.

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that would be implemented under an EPA regulatory program. 173

Most environmentalists consider CEJAPA a stronger bill

than ACES. 174 The target of GHG emission reductions was

increased from seventeen percent below 2005 levels to

twenty percent. 175 The states are also afforded more

authority to continue their climate programs that are not

cap-and-trade, which they will also be able to continue for

nine months after the first auction of GHG allowances. 176

Along with the cap-and-trade program, CEJAPA provides

for research and development, incentives, grants and

investment in among other things, renewable energy, natural

gas, nuclear energy, the electric grid, infrastructure,

transportation, adaptation, protection of consumers and

green job training. 177

While ACES exempted GHGs from key CAA provisions, CEJAPA

proposes a cap-and-trade program that will compliment the

CAA rather than replace it. 178 EPA can, therefore, establish

173Id.

174See generally Brad Johnson, Kerry-Boxer Clean Energy Jobs Act

Strengthens American Power, Wonk Room , Sept. 30, 2009,http://wonkroom.thinkprogress.org/2009/09/30/kerry-boxer-clean-energy-jobs/ (summarizing Act and comparing it to the house bill).175

S. 1733, 111 th Cong. (1999)http://kerry.senate.gov/cleanenergyjobsandamericanpower/pdf/bill.pdf .See also Clean Energy Jobs and American Power Act: Summary ofProvisions,http://kerry.senate.gov/cleanenergyjobsandamericanpower/pdf/Summary.pdf.176

Id.177

Id.178

See Alice Kaswan, Boxer-Kerry: Integrating Regulation and Cap-And-Trade, Center for Progressive Reform, Oct. 1, 2009,http://www.progressivereform.org/CPRBlog.cfm?idBlog=0EF54957-D377-FF79-

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standards for all new facilities and existing facilities

that significantly modify their plants. 179 CEJAPA

supplements this existing authority by setting future

emission reductions over new coal-fired plants. 180 While it

is important for the EPA to retain regulatory authority to

require controls if the cap-and-trade market fails to

provide sufficient incentives, it is arguably less

efficient. 181 Regulatory approaches force emissions

reductions where it may have been less expensive for the

facility to purchase allowances. 182 Further, regulation

forecloses the prospect of increasing efficiency in order

to sell allowances to other facilities. 183

Missing from the CEJAPA bill, however, is a citizen suit

provision, authorizing citizens to sue emitters in the cap-

and-trade market for violations of the law. 184 Much of this4930A62A84F0F0B8.179

See Id.180

See Id. Plants that receive permits between 2009 and 2019 mustachieve a 50-percent reduction in emissions by 2025. Id. Plants thatreceive permits from 2020 on must achieve a 65-percent reduction inemissions. Id. (citing S. 1733 812(b)).181

See Id.182

See Id.183

See Id.184

See William Buzbee, Boxer-Kerry: Measures to Address Errors andIllegality, Center for Progressive Reform, Oct. 5, 2009,http://www.progressivereform.org/CPRBlog.cfm?idBlog=26AA1345-C71B-3C79-0B6C7A24A8DEE099 . See also Thomas D. Peterson et al., Developing aComprehensive Approach to Climate Change Policy in the United StatesThat Fully Integrates Levels of Government and Economic Sectors, 26 Va.Envtl L. J. 227, 269. Any comprehensive effort must provide a citizen-suit provision and fully engage the citizen-consumer meaning providingthem with information, incentives, and the means necessary to makeenergy conservation and renewable energy both attractive and available.Id.

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floor vote in February and the legislation before President

Obama in April. 189

While a dedicated President and Democratic majorities in

Congress justify a great deal of hopefulness, this is not

the first attempt at passing legislation to curb GHG

emissions. Three previous bills have fallen short. 190 The

primary opposition stems from a fear that, due to

globalization any restrictions placed on American industry

will lead to job and production migration to countries with

a less restrictive environmental and climate regime. 191 The

uphill battle is even steeper for current efforts due to

189See Sen. Baucus (D-MT): Theres no doubt that this Congress is

going to pass climate change legislation. Climate Progress , Nov. 6,2009, http://climateprogress.org/2009/11/06/baucus-congress-is-going-to-pass-climate-bil/.190

See Climate Stewardship Act of 2003, 139, 108th Cong. (2003)

(proposing an economy-wide GHG cap-and-trade program). See also LowCarbon Economy Act of 2007, 1766, 110th Cong. (2007) (proposing aneconomy-wide mandatory tradable-permits system that is designed to mostcost-effectively reduce carbon emissions). See also Boxer-Lieberman-Warner Climate Security Act Substitute Amendment, 3036, 110th Cong.(2008) (setting a declining cap on U.S. emissions of greenhouse gases).191

See Ian Talley, Lobby Groups Use Town Hall Tactics to Oppose ClimateBill, Wall St. J. , Aug. 11, 2009. In template fliers for ralliesproduced by the API-founded alliance, EnergyCitizens, the public iswarned that Climate change legislation being considered in Washingtonwill cause huge economic pain and produce little environmental gain.Id. But see Thomas L. Friedman, Off to the Races, NY Times , Dec. 19,2009. The only engine big enough to impact Mother Nature is Father

Greed: the Market. Only a market, shaped by regulations and incentivesto stimulate massive innovation in clean, emission-free power sourcescan make a dent in global warming. And no market can do that betterthan Americas. Therefore, the goal of Earth Racers is to focus ongetting the U.S. Senate to pass an energy bill, with a long-term priceon carbon that will really stimulate America to become the world leaderin clean-tech. If we lead by example, more people will follow us byemulation than by compulsion of some U.N. treaty. Id.

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the recent economic downturn. 192 Further, due to the alleged

increased costs imposed by legislation, which will cut into

profits, oil and coal companies are deeply entrenched in

their opposition to clean energy. In just the first three

months after President Obama took office, interest groups

and corporations spent $200 million to influence U.S.

energy policy. 193

While these external factors have great effect the

structure of government in America may have even greater

effect. The U.S. Constitution is arguably not a hospitable

place for far-reaching problems that affect various groups

and requires massive cooperation and mobilization. 194

192See Deborah R. Zabarenko, Scenarios: EPA Rules vs. Congresss Laws

on Climate Change, Reuters , Dec. 8, 2009,http://www.reuters.com/article/idUSTRE5B628820091208 . [I]ndustries,represented by the U.S. Chamber of Commerce, oppose so-called cap-and-trade legislation on the grounds that it would hamper businesses as thecountry struggles out of a painful recession. Id. But see TheEstimated Costs to Households From the Cap-And-Trade Provision of H.R.2454, Congressional Budget Office, June 19, 2009,http://energycommerce.house.gov/Press_111/20090620/cbowaxmanmarkey.pdf (estimating that the net annual economy wide cost of the cap-and-tradeprogram in 2020 would be $22 billion-or about $175 per household, orabout the cost of a postage stamp a day).193

See Brad Johnson, $199.5 Million Spent on Energy Ads Since ObamasInauguration, Wonk Room, Apr. 15, 2009. According to Campaign MediaAnalysis Group between Obamas January 20 Inauguration and the end ofMarch, most TV ad spending was directed toward energy and theenvironment, which saw $115.1 million worth of ads. Id. The nextbiggest targets were gas and oil issues, which were the subject of

$54.5 million in ad buys, followed by labor, stimulus and budget-related issues ($41.9 million), climate change ($29.9 million) andhealth care ($27.5 million). Id. See also Friends of America Rally.http://friendsofamericarally.com/ . In poor but mineral rich WestVirginia millionaire Don Blankenship hosts a rally for Friends ofAmerica to hear country music and learn how environmental extremistsand corporate America are both trying to destroy your jobs. Id.194

See generally Richard J. Lazarus supra note 12 at 1197-1200(discussing U.S. Constitutions structure and its implicatio

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