Types of Climate Change Disputes and Litigation in the USA

1. Types of Climate Change Disputes and Litigation in the USA University of Insubria, Como, Italy Jeffrey W. Stempel and Ann C. McGinley William S. Boyd School of Law University of Nevada, Las Vegas

2. A Short History of Climate Change Litigation

3. Identifying the Problem • 1950s – Modern scientists begin to recognize the possibility that human activity generating heat and carbon gas has affected Earth’s atmosphere and climate (actually some scientific attention as early as the 19th Century) • But not much action and even less public awareness • 1976 Al Gore (while still a U.S. Senator from Tennessee) has congressional hearings, supports further and increased study

5. Government Action • National Climate Program Act of 1978 • 1980 – Congress directs study by the Office of Science and Technology Policy • Global Climate Protection Act of 1987 • Intergovernmental Panel on Climate Change (1990) • Global Change Research Act of 1990 • UN Framework Convention on Climate Change • Kyoto Protocol (1997)

6. Climate Change Consciousness • 1980s – Increased scientific evidence that industrial activity and the gases produced are affecting atmospheric and climate change • Picked up more in the news media • Dominated by the term “Global Warming” • 1990s – more scientific evidence and publicity • Early 21st Century – continues • “Climate Change” becomes the preferred term

7. Climate Change Consciousness • But with increased climate change awareness comes backlash • Climate Change Skeptics (but few in the scientific community) • And outright Climate Change Denial • Petrochemical companies lead the charge • Accompanied by Extreme Right-Wing politicians • And because this is the USA, some of these people are in Congress rather than straightjackets

8. Climate Change Rogues Gallery • The Koch Brothers (Charles and David) • Senator James Inhofe (R-Oklahoma) • Contends that climate change is the “biggest hoax” ever • June 2013: Oklahoma site of unusually massive and deadly tornados • Fox News • Owned by Rupert Murdoch; Run by former political consultant Roger Ailes; Viewed by many as a Republican public relations tool by many (but large number of viewers) • Fundamentalist Christian religious communities • All is irrelevant for those waiting for the rapture

9. Mug Shots From the Rogues Gallery

10. To be fair . . . . • The academic community in the USA tends to be left of the political community • Universities and law schools have generally supported stronger climate change efforts • But some “moderates” or less conventional thinkers in the academy • Concern (that you will see in judicial decisions) about whether the courts should address problem or if problem should be addressed only or primarily by legislative and executive branches

11. To be fair . . . Part II • A few scholars in the USA think the climate change problem is overstated • And a few (e.g., J.B. Ruhl at Vanderbilt) suggest that not all impact of climate change will be bad for all people and regions. There will be some “winners” in climate change as well as “losers.” (The Political Economy of Climate Change Winners, 97 Minn. L. Rev. 206 (2012)). • Arkansas dries up • But Canada has a longer growing season

13. But Fairness and Tolerance of the Conservative View Goes Only So Far • In the USA, the majority of University and Law School faculty views climate change as a serious problem • But a significant group is hesitant about what courts and traditional litigation can do • As to the scope of the problem, the left is right: the problem is serious and USA has not taken enough action • Scientific community (a generally less left group than the liberal arts or law community) is very worried

14. Legal Scholarship and Climate Change • Broke out in a big way during the 21st Century • A new aspect of USA law – but uncertain as to its direction in the academy or in the field • An early article: David A. Grossman, Warming to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum. J. Envtl. L. Rev. 1 (2003)

15. Other Theoretical Roadmaps for Climate Change Lawsuits • Lindsay Leone, Putting the Heat on the Fossil Fuel Industry: Using Products Liability in Climate Change Litigation, 21 B.U. Pub. Int. L.J. 365 (2011) • Gregory Munro, The Public Trust Doctrine and the Montana Constitution as Legal Bases for Climate Change Litigation in Montana, 73 Mont. L. Rev. 123 (2012)

16. Legal Scholarship and Climate Change • Grossman’s Template – still in progress • Outlines a number of potential lawsuits by climate change victims against defendants whose actions have contributed to climate change • Discusses technical legal issues

17. Legal Scholarship and Climate Change • Technical Legal Issues • Do Defendants owe a legal duty to victims? • Do victims have “standing” to sue? • Is a lawsuit the proper vehicle for assessing the claim? • What is the standard for liability? • Even if Defendants spew out greenhouse gases, can this be shown to be a proximate cause of particular harm to particular victims? • What damages suffered by victims can be attributed to defendant conduct?

18. Standing • Required by Article III of U.S. Constitution • Plaintiff must show: • An Injury that is • Concrete and particularized as well as • Actual and imminent (not speculative or hypothetical) • The injury is fairly traceable to defendant actions; • The injury can probably be remedied by a favorable court decision

19. Elements of Negligence Tort • Duty of Care owed by Defendant to Plaintiff • Breach of Duty by the Defendant • That is the proximate (fairly traceable and legally recognized) cause • Of sufficiently provable injury to Plaintiff • Hard to achieve in climate change litigation • Demonstrating crop loss or flood caused by power plant harder than showing defendant’s driving or exploding Coke bottle hurt plaintiff

20. Causation • Must show that defendant action is a cause-in-fact of harm and • That it is a “proximate” cause the law will recognize as not too attenuated or unfair in imposing liability

21. A Causal Chain – “for want of a nail the Kingdom was lost” • Defendant companies engage in carbon-producing activity or goods • Consumers use product (cars)to produce more carbon • These emissions cause a greenhouse effect • Sea levels rise, permafrost melts • Damage to air and property result • That is foreseeable • But this is also general: Can you say that a power plant in Ohio causes harm in Vermont?

22. More on Legal Doctrine and Climate Change Litigation • Difficulty in showing damages leads to efforts for injunctive relief – but this can cause more justiciability problems • Can courts order governments agencies or regulate industries making carbon emissions? • Is it a “political question?” • Do federal statutes “pre-empt” or “displace” state statutory or common law claims that victims might otherwise have?

23. More on Legal Doctrine • Are Climate Change Claims Tort Claims? • If So, What Torts? • Nuisance? (state or federal common law?) • Public Trust? • Negligence? • Strict Liability? • Trespass? • Or must the claims be grounded in a federal statute? • But if a federal statutory claim, must courts yield to the administrative agency in charge of the statute?

24. Public Nuisance • Grossman thought this tort claim most likely to succeed in a lawsuit • Elements are: • A right common to the public • Defendant’s unreasonable interference with that public right • Failure to take reasonable actions to avoid or reduce the harm

25. Examples of Unreasonable Conduct • Significant interference with public safety, health, peace, comfort or convenience; • Continuing conduct producing a long-term bad effect of which Defendant is aware (or should recognize) but does nothing; or • Defendant conduct is illegal (in violation of statute or regulation)

26. Another Legal Question: Is There Insurance Coverage? • The 20th Century expansion of Tort Law in the USA was to a large degree made possible because of the increasing presence of liability insurance held by defendants. • Before the advent of widespread automobile and general liability insurance (which took place during 1920-1950), individual and small business defendants lacked funds to pay claims • Lawyers would not take cases to sue defendants that could not pay • But with insurance, the mid and later 20th Century saw a big expansion of tort liability and litigation

27. Climate Change and Insurance • If there is insurance, there will be more willingness of victims/plaintiffs • lawyers to bring climate change lawsuits. Lawyers seek a “deep pocket” that can pay damages • Insurance can provide this where defendant is not wealthy • Even the early “test” “cutting edge” “new cause of action” or experimental cases that have a high failure rate (at least initially) • Example of asbestos: • at first a high risk case brought by lawyers willing to take a risk. Years without success until courts accepted such cases. Then favorable precedent made it “easy” and an avalanche of lawsuits followed • Similar example: Dalkon Shield • suits against the maker of the contraceptive device. Earlier failures but perseverance led to victories and success.

28. Climate Change and Insurance • To Soon To Tell – or a hopeless cause? • The climate change lawsuits to date have sought injunctive relief • But most liability coverage is only for actions seeking monetary damages from the defendant (who hopefully has liability insurance) • Until more damages lawsuits are brought, we won’t know about insurance coverage • A good case for coverage but also some good arguments against it

29. Insurance Coverage for Climate Change Claims • Some early scholarly support • Stempel, Insurance and Climate Change Litigation, Ch. 10 in Burns & Osofsky, Litigating Climate Change (2009) • But some of it from policyholder lawyers • Malloy & Sylvester, Insurance Coverage for Global Warming Liability Claims, 45 Tort Trial & Ins. Prac. L.J. 811 (2010) • Paul, The Price of Emission: Will Liability Insurance Cover Damages Resulting From Global Warming?, 19 Loy. Consumer L. Rev. 468 (2007) • And still plenty of insurer resistance

30. Too Early for a Climate Change Scorecard? • David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?, 64 Fla. L. Rev. 15 (2012)(concluding that it is “business as usual” which translates into only modest impact from such lawsuits) – more on this after we look at our major cases • Hugh S. Wilkins, The Justiciability of Climate Change: A Comparison of US and Canadian Approaches, 34 Dalhousie L.J. 529 (2011)(finding similar reaction of Canadian courts) • Concern that courts can only do so much about climate change.

31. Massachusetts v. EPA • Massachusetts and other states sue the Environmental Protection Agency (EPA)? • Why? • To Force the EPA to issue regulations regarding greenhouse gas emissions • What is the EPA? • An administrative agency of the national USA government (the “federal” government)

34. Massachusetts v. EPA (con’t)Backing Up a Step • What is an Administrative Agency? • Technically a part of the Executive Branch • Agency heads report to the President • But created by the legislature (Congress) • Remember the organizational chart • Legislative – Executive – Judicial • Early debate was whether Congress could “delegate” this much lawmaking and enforcement power to the Executive Branch • Modern “Administrative State” accepts this in USA and other industrial democracies

35. More Background on Massachusetts v. EPA • How did The EPA come into being? • Created as part of the “Earth Day” legislation of 1970 • Along with Clean Air Act, Clean Water Act • Headed by an “Administrator” rather than a cabinet secretary but still very important

36. More on Massachusetts v. EPA • How can a state sue a part of the national government? • In the USA system – yes – subject to some constraints that are less likely to affect private litigation • What are some legal problems with Massachusetts pursuing this action? • Standing • Does the plaintiff have a right to bring a lawsuit against the defendant? (an injury) • Justiciability • Is the matter appropriate for judicial determination?

37. Standing • There must be a real (and not a hypothetical dispute) between the plaintiff and defendant • In simple form, standing means the claim is sufficiently tangible and that the plaintiff has a non-speculative claim against the defendant • And the harm must be immediate and concrete • For example: I’m worried that Google will give my private information to the government” used to be a hypothetical, speculative claim.” • But “Google did in fact share my private data with the government” would seem to be a sufficiently concrete claim

38. Standing • But beginning in the 1970s, the U.S. Supreme Court began applying a more involved concept of standing that requires not only that the dispute between the litigants be real but also that: • The injury can be fairly traced to the defendant’s action; and • Winning the lawsuit will give a judicial remedy that adequately redresses the harm suffered • As we shall see, this appears to co-mingle standing and justiciability

39. Justiciability • The concept stems from the USA system of separation of powers • The idea is that the judiciary should be deciding cases and not making policy like a legislature or executive. • This is one of the reasons for the standing requirements as well • To be justiciable, a case must be one that can be decided according to judicial methods with the application of judicial remedies for the winner • But modern challenges have often led to an expansion of judicial remedies

40. Justiciability Concerns • Avoiding Advisory Opinions • Avoiding a decision that is speculative because the dispute is not yet “ripe” for adjudication • e.g., suing the EPA administrator because you think she is likely to make a bad regulation in 2015 • But also refusing to decide a case where there is no longer anything the court can do because the legal aspect of the case is “moot” • e.g., attacking the EPA imposition of a penalty where the EPA subsequently waived the penalty • But some courts would hear this case because it is capable of being repeated

41. Justiciability • Avoiding legislative lawmaking by the court • “Political Questions” presented in a lawsuit will not be entertained by USA courts • A political question is one that the Constitution has assigned to another branch of the legislature • Example: A court may declare a tax unconstitutional if it is discriminatory – but it will not determine the amount of a tax

42. Back to Masschusetts v. EPA • Statute enacted by Congress instructs EPA to regulate “pollutants.” • EPA has taken the position that carbon dioxide and other greenhouse gases are not “pollutants” subject to agency regulation • Either because CO2 is not really a polluter • Or because if it is, it is already being regulated by legislation concerning automobile emissions

43. Massachusetts v. EPA • Massachusetts claims that EPA failure to regulate hurts the state and that this gives Massachusetts “standing” to sue • Does the Supreme Court agree? • Yes – Massachusetts (and other states) have an interest in protecting the state lands and the air – an allegation that another (even a government agency) is hurting the air, water and land creates a concrete and adverse dispute that is not merely hypothetical

44. Massachusetts v. EPA • Because there is Standing, the Court can consider and judge the issue of whether EPA is in violation of the statute. • By a 5-4 vote (as was the case on the issue of standing), the Court finds EPA in violation • The Statute is clear – EPA should regulate pollutants • The fact that there is other regulation over some pollutants some of the time (e.g., automobile tailpipe emissions) does not take this authority or duty away)

45. Massachusetts v. EPA • Carbon Dioxide is clearly a pollutant • Sure, CO2 is a natural bi-product of breathing, some natural activity • So are other greenhouse gases (e.g., methane – take a walk around a cow pasture and take a deep breath to confirm) • But natural or man-made, CO2 is a greenhouse gas that is alleged to contribute to adverse climate change

46. Massachusetts v. EPA • Greenhouse cases are sufficiently “pollutants” that they fall within the statutory command that EPA examine and take regulatory action • But the Court is not declaring exactly what regulatory action should be taken by EPA • Rather, EPA simply has to go to work and exercise its decision-making authority • Conceivably, EPA could decide that despite its contribution to climate change, regulation CO2 is not in the public interest because of administrative cost, burdens on business, etc. – but EPA must at least examine the situation

47. Massachusetts v. EPA • The Court majority (Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg & Breyer) • The dissenters (Chief Justice Roberts and Justices Scalia, Thomas and Alito) • Disagreement over standing • Disagreement over interpretation of the statute • Disagreement over the role of the Agency • Dissenters find the case a political question; Decisions of this type should be left to legislature or the executive (including agencies operating within the executive branch).

48. Massachusetts v. EPA -- Aftermath • Case decided in 2007 • Near the end of the George W. Bush Presidency • 2008 – Barrack Obama elected President • 2009 – President Obama appoints Cabinet officials and many agency heads – including a new EPA Administrator • The Obama EPA willingly does what the Bush EPA was required to do by lawsuit • Does this mean it was a political question after all? • That should have been left to the Executive Branch?

49. Connecticut v. American Electric Power • At least the case starts with that name • Connecticut and other states sue AEP and many other utilities because defendants put huge volumes of greenhouse gases into the atmosphere, contributing to accelerated adverse climate change • Power plants, automobiles, and airplanes as particularly substantial contributors to climate change