Global Warming Litigation

The New Legal Frontier?

Cory P. Balliet, EsquireTallman, Hudders & Sorrentino

Pennsylvania Office ofNorris, McLaughlin & Marcus, P.A.

Lecture Overview

Science Review History of Global Warming Litigation Defendants 5 Types of Litigation Mass. v. EPA Defenses to Suit Predictions Protecting your Clients

“A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe that the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a ‘greenhouse gas.’”

Massachusetts v. Environmental Protection Agency,

127 S. Ct. 1438, 1446 (2007) (Stevens, J.).

Climate Change v. Global Warming

What is Climate Change?→ Climate Change refers to a

variety of changes in the Earth’s climate due to direct or indirect human activity that alters the composition of the atmosphere.

Change v. Warming (cont.)

What is Global Warming?→ Global warming—which refers to an

increase in average air and water temperatures over time—is due in part to the greenhouse effect, a natural phenomenon that human activities have significantly amplified.

→ Global warming is one important component of Climate Change, but the terms are not interchangeable.

The “Greenhouse Effect”

The “greenhouse effect” refers to the process whereby a layer of gases (known as “greenhouse gases” or “GHGs”) allows the sun’s energy to enter the atmosphere but then prevents that energy from escaping, thus trapping the sun’s heat energy in and around the Earth.

“Greenhouse Gases” or “GHGs”What are “GHGs”?

A category that includes a variety of gases, such as:

water vapor methane halocarbons

carbon dioxide nitrous oxide

The burning of fossil fuels has increased the level of GHGs in the atmosphere, causing a stronger greenhouse effect and higher temperatures.

Solar energy passes through

Radiant heat is trapped

Greenhouse gases in atmosphere

“Greenhouse gases” (e.g. carbon dioxide, methane, nitrous oxide, CFC’s) trap heat in the earth’s atmosphere.

Greenhouse gases in atmosphere

CO2: The Most Significant Greenhouse Pollutant

C + O2 → CO2

Burning carbon-containing fossil fuelsproduces carbon dioxide

CO2

CH4

Scientists estimate that humans have contributed to an increase in CO2 in the atmosphere by more than 37% since the Industrial Revolution.

→ The most carbon dioxide (384 parts per million) in 800,000 years.

Main Contributors to Global Warming

Global Warming and Increased TemperaturesTop 11 warmest

years on record have all occurred in the last 12 years

2006 was warmest year on record in continental US

2007 was warmest year on record in North America

Changes attributable to Global Warming

Rising air temperaturesRising water temperaturesIncreased extreme weather eventsRising sea levelsChanges in ocean currentsChanges in animal migrationRapidly melting glaciers

Legal History Prior to 2004

Traditionally, the common law provided the legal means of controlling pollution.

Two main legal theories:

1. NUISANCE: for regulating air, water, and hazardous waste pollution

2. TRESPASS: unlawful act committed against the property of another

Legal History (cont.)

1750s-1830s: During the Industrial Revolution

there was an increase in air and water pollution, and the nuisance and trespass claims became more popular.

Courts adopted a “balancing test” in evaluating nuisances where “the gravity of the harm” was balanced against “the utility of the actor’s conduct.”

American Legal Landscape

1960s–early ’70s: In the 1960s and early ‘70s, the

health of the environment emerged as a pressing national issue.

Congress began to institute a wide range of statutes that complicated environmental law and preempted traditional federal common law causes of action.

American Landscape (cont.)

1970s-early ‘90s: Since the early 1970's, Congress has

enacted numerous environmental protection statutes.

Most of these statutes are implemented through extensive administrative regulations at the federal level, the state level, or at both levels of government.

American Landscape (cont.)

1990s-2004: In 1992, US joined the United

Nations Framework Convention on Climate Change

UNFCCC is an international treaty designed to address the international issue of Global Warming

Members of UNFCCC negotiated Kyoto Protocol which called for mandatory reduction in Greenhouse Gas emissions

Take it to the courts…

Against this background of uncertain executive and legislative efforts, the Global Warming debate has moved to the courts.

Areas affected by Global Warming Litigation:Air and water qualityWater quantityEndangered speciesPublic healthPublic lands managementUrban sprawlTransportationInternational law

What parties may be named as DEFENDANTS?

What parties are vulnerable to suit?→ Any party that contributes to

the increase in greenhouse gases in the Earth’s atmosphere (i.e., any emitter of GHGs)

Defendants (cont.)

Governmental Agencies (EPA, etc.)Oil and Gas Companies (Exxon

Mobile, etc.)Utility CompaniesPower PlantsAutomotive Companies (Ford, etc.)Transportation Companies

(trucking companies, etc.)

Defendants (cont.)

Delivery Companies (FedEx, etc.)Toy Manufacturers (Hasbro)Fiber-Optic ManufacturesChemical ManufacturersRailroad (Burlington Northern)Cruise Lines (Royal Carribean, etc.)Lawn and Garden Companies

(Scotts Miracle Grow)

Any other Defendants?

Other manufacturers?Parts for automotive industry?Parts for aerospace industry?Parts for power plants?

You and me for driving to work?Anyone else?

5 Major Types of Global Warming Litigation

I. NuisanceII. National Envir’l Policy ActIII. PreemptionIV. Clean Air ActV. Information-forcing

litigation

I. Public Nuisance (1/5)

Cause of action derived from common law tort.

Plaintiffs have asserted that GHG emissions create a public nuisance under both state and federal common law.

Public Nuisance: “An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community or moral standards.”

Nuisance (cont.)

State governments have spearheaded 2 high-profile cases based on public nuisance: 1 against a group of major power companies and another against a group of automobile manufacturers

See Conn. v. Am. Elec. Power, Inc.(2005) and Cal. v. General Motors Corp. (2006)

II. The National Environmental Policy Act (2/5)

Federal statute enacted in 1970 by Pres. Nixon

Established procedural requirements for all federal agencies to prepare “Environmental Assessments (EA)” and “Environmental Impact Statements (EIS)”

Requires the federal government to assess the environmental ramifications of all decisions before acting

NEPA (cont.)

Similar state versions of the NEPA provide an additional means of challenging state and local government actions

See Friends of Earth, Inc. v. Watson (2005) (plaintiffs suing governmental investment agencies that financially supported fossil fuel projects without first conducting EAs)

III. Federal Doctrine of Preemption (3/5)

Legal theory based on the Supremacy Clause of the United States Constitution (U.S. Const. art. VI, § 2)

Preemption refers to the displacing effect that federal law has on conflicting or inconsistent state law.

When there is a conflict between state law and federal law, the federal law trumps the state law.

Preemption (cont.)

Actions initiated by automobile manufacturer Defendants seeking to challenge local (that is, more strict) environmental regulations

Preemption suits argue that more lenient federal air emission standards preempt the more stringent state regulations on which Plaintiffs often rely

See Central Valley Chrysler-Jeep v. Witherspoon (2006)

IV. The Clean Air Act (4/5)

CAA has provisions that address acid rain, ozone depletion, and toxic air pollution by establishing a national permit program.

Numerous state and local governments have enacted similar legislation, either implementing federal programs or filling in locally important gaps in federal programs.

→ Pennsylvania Clean Air Act Amendments of 1990 (PA meets more strict federal CAA guidelines)

CAA (cont.)

Plaintiffs contend that the CAA regulates the emission of greenhouse gases as a pollutant

Plaintiffs argue that the EPA has the authority to regulate motor vehicle emissions (CO2) since they are greenhouse gases

Thus, Plaintiffs also argue that the EPA did not act within its discretion when it elected to not promulgate GHG regulations in 1999

See Mass. v. EPA (2007)

V. Information-Forcing Litigation (5/5)

Challenges to the federal government’s failure to generate, compile and/or disclose information pursuant to various statutes that ostensibly require the government to generate information about Global Warming

Often referred to as “sunshine laws” because they include any and all laws ensuring for openness and transparency in government operations

Information-Forcing (cont.)

Freedom of Information Act: allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. government.

Global Change Research Act of 1990: requires research into (with mandatory reporting!) global warming and related environmental issues

Seminal Federal Case

Massachusetts v. Environmental Protection Agency (2007)

The first and only case the Supreme Court has considered regarding Global Warming.

Facts & Procedural Posture:

In 1999, 19 private orgs. petitioned EPA and requested that it begin taking steps to regulate GHG emissions for new vehicles under the CAA

In 2003, EPA denied petition, concluding that the CAA did not give it authority to regulate GHGs through mandatory regulations and, even if it did, that such regulation would conflict with Executive Branch’s “comprehensive approach” to climate change

Facts (cont.)

The 19 private orgs., joined by MA and 11 other states, sued the EPA for its refusal to regulate the emissions under the CAA.

10 other states intervened in support of the EPA.

Lower court’s holding:

U.S. Court of Appeals for the District of Columbia held that the EPA acted properly in denying petition.

Plaintiffs appealed.

Arguments

Plaintiffs’ argument: EPA has abandoned its clear duty under the CAA to regulate GHG emissions.

Defendants’ argument: (i) Plaintiffs lack standing because harms caused by GHGs were so widespread and, (ii) even if they had standing, the EPA did not have authority to regulate because GHGs do not fall within definition of “any air pollution”.

The Supreme Court reversed and held:

(1) that plaintiffs had standing under Article III of the U.S. Constitution to challenge the EPA’s denial of their rulemaking petition to have CO2 regulated;

(2) that the EPA had the authority under the CAA to regulate new motor vehicle emissions of CO2 because the emissions are “air pollutants” under the Act;

Holding (cont.)

(3) that the EPA failed to provide a “reasonable explanation for its refusal to decide whether GHGs cause or contribute to climate change”; and

(4) that the “EPA’s steadfast refusal to regulate GHGs presents a risk of harm that is both actual and imminent.”

Why is this holding significant?

First case that was allowed to proceed on the merits.

Marks the beginning of a major shift in the treatment of GHGs under federal law.

State regulatory schemes will not be immune in the future from similar challenges.

Potential Defenses to Suit

1. Political Question Doctrine

2. Standing *

3. Factual & Proximate

Causation

1. Political Question Doctrine & Judicial Competence (1/3)Cases raise formidable legal, scientific,

economic and policy issues that may be beyond the competence of the courts

Issues more suitable for resolution by (i) legislative branch, or (ii) administrative agencies

See Conn. V. Am. Elec. Power Co. (2006) (court refusing to set caps on CO2 emissions under public nuisance theory and dismissing under political question doctrine)

2. Standing (2/3)

Key issue for claims brought by conservation and other public interest groupsOn behalf of whom is the action

being brought?Also a problem for States

Action brought on behalf of the State? On behalf of its citizens? “General health and welfare?”

Standing Requirements

Article III of U.S. Constitution limits the reach of the federal judicial power to “cases and controversies.”

This ensures that courts do not assert jurisdiction over matters more properly left to other political branches.

To present a justiciable case or controversy, a plaintiff must demonstrate that he has sufficient stake in that particular dispute.

Lujan v. Defenders of Wildlife and Standing in Environmental Actions In Lujan, a seminal environmental

and standing case, the Supreme Court articulated a three-prong test to determine whether a Plaintiff has standing:

1. INJURY2. CAUSATION3. REDRESSABILITY

“INJURY” under Lujan

Plaintiff must have suffered an injury-in-fact, which must be concrete, particularized, and actual or imminent.

“Injury-in-fact” means “an actual injury or imminent invasion of a legally protected interest, in contrast to an invasion that is conjectural or hypothetical.”

What is a sufficient “Injury” to support a suit based on Global Warming?Damage to property from a

hurricane (Katrina, etc.)?Destruction of a coastline from rising

sea level?Ruined crop from a lack of rain?Depleted fisheries and wildlife?Asthma from increased smog?Death from skin cancer caused by a

sunburn?

“CAUSATION” under Lujan

Injury must be fairly traceable to the challenged conduct.

“Causation” is “the causing or producing of an effect.”Was the injury caused by global

warming? By emission of CO2? How can a plaintiff show this?

“REDRESSABILITY” under Lujan

“Redress” is a “relief or remedy.”The plaintiff must seek relief that is

likely to redress the injury he or she allegedly suffered.Will a favorable ruling from the court

cure the injury? What evidence can a plaintiff put forth to

show this?

3. Factual and Proximate Causation (3/3)

Factual Cause: The cause without which the event could not have occurred (i.e., “but-for cause”).

Proximate Cause: A cause that directly produces an event and without which the event would not have occurred.

Factual/Proximate (cont.)

Plaintiffs have great difficulty proving the extent to which the actions of any individual power plant operator or manufacturing company (or even the entire industry!) contributed to global warming as opposed to non-defendant emitters of GHGs.

Most plaintiffs are probably producers of GHGs themselves! Indemnification?

Predictions: Where Global Warming Litigation is Heading

1. GHG emission cap2. Influx in litigation3. Tobacco-style suits4. Shareholder derivative

suits5. Liability for past behavior

Predictions (cont.) (1/5)

1. New administration will push for a national CAP on CO2 emissions (and states will follow).

→ Federal regulations will establish reporting requirements.

→ Federal agencies, States, and environmental “watch groups” will police emissions.

Predictions (cont.) (2/5)

2. Supreme Court’s decision in Mass. v. EPA will lead to an influx in litigation

throughout the country as Plaintiffs’ attorneys learn how to properly shape their Complaints

→ What clients will be roped into new litigation?

Predictions (cont.) (3/5)

3. Lawsuits will be modeled after tobacco litigation

Example:→ Village of Inupiat Eskimos located 70 m

north of the Article Circle suing 23 companies in the oil, energy, and coal industries

→ Complaint alleges that 8 of the companies have conspired to cover up the threat of man-made climate change

Predictions (cont.)

→ Allegation that companies have a strategy of establishing “front” groups with scientists that distort scientific data and misinform the public.

→ Rather than asking a court to determine how much greenhouse gas production is acceptable or attributable to a particular D, the Ps are asking the court to evaluate whether a D conspired to lie, etc.

Predictions (cont.) (4/5)

4. Companies (and directors/officers?) that contribute to global warming sued by, inter alia, their own disgruntled shareholders.→ Increase in shareholder derivative suits alleging that companies have failed to tell investors enough about (1) how much they contribute to global warming, or (2) what it might cost them to clean up.

Predictions (cont.) (5/5)

5. New laws creating new liability for past behavior.

→ Example: Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (i.e. “Superfund”) created strict liability for prior environmental pollution damage.

Protecting Your ClientsFrom Suit

1. Be careful with new “green programs”

2. Be careful with research and publication of “green” studies

3. Use modern “emission technologies”

4. Comply with all environmental statutes

Protecting Clients (cont.) (1/4)

1. Use care when establishing corporate communications strategies related to “green programs”

→ Plaintiff’s attorneys are claiming that corporate environmental policies are being implemented to remediate corporate responsibility for global warming

→ Argument used to support “conspiracy” claim from Inupiat Eskimos case

Protecting Clients (cont.) (2/4)

2. Use care when conducting research, creating studies and reports, and advocating on behalf of the company

→ Can be used as evidence (admissions!) of contribution to Global Warming

→ Can your clients be named as co-conspirators?

→ Applicable to companies as well as trade groups, Chambers of Commerce, and affiliated industry organizations

Protecting Clients (cont.) (3/4)

3. Use modern and current emissions technologies

→ Emission standards regulated by the EPA (will include auto emissions after Mass v. EPA)

→ Watch for updated standards under new Presidential administration

→ Watch for amendments to existing statutes

Protecting Clients (cont.) (4/4)

4. Remain compliant with all relevant Federal and State statutes (watch for amendments!)

→ Examples:∙ Energy Independence and Security

Act (2007): contains many provisions that could indirectly lead to reduction in greenhouse gas emissions; more stringent fuel economy standards for cars and light trucks; higher efficiency standards for appliances and lighting; higher efficiency requirements for government buildings

Protecting Clients (cont.)

∙ Energy Policy Act (2005): voluntary national program designed to encourage voluntary reductions in greenhouse gases; voluntary reduction of carbon intensity; no requirement to reduce emissions

∙ Clean Air Act (2002)

∙ National Climate Protection Act (2000)

∙ Energy Policy Act (1992)