Global Warming Litigation

1. Global Warming Litigation The New Legal Frontier? Cory P. Balliet, Esquire Tallman, Hudders & Sorrentino Pennsylvania Office of Norris, McLaughlin & Marcus, P.A.

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

3. “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.).

4. 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.

5. 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.

6. 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.

7. “Greenhouse Gases” or “GHGs” What are “GHGs”? A category that includes a variety of gases, such as: water vapor methanehalocarbons carbon dioxidenitrous oxide The burning of fossil fuels has increased the level of GHGs in the atmosphere, causing a stronger greenhouse effect and higher temperatures.

8. Greenhouse gases in atmosphere Solar energy passes through Radiant heat is trapped “Greenhouse gases” (e.g. carbon dioxide, methane, nitrous oxide, CFC’s) trap heat in the earth’s atmosphere. Greenhouse gases in atmosphere

9. CO2: The Most Significant Greenhouse Pollutant C + O2→ CO2 Burning carbon-containing fossil fuels produces carbon dioxide

10. 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.

11. Main Contributors to Global Warming

12. Top 11 warmest years on record have all occurred in the last 12 years 2006 was warmest yearon record in continental US 2007 was warmest year on record in North America Global Warming and Increased Temperatures

13. Changes attributable to Global Warming • Rising air temperatures • Rising water temperatures • Increased extreme weather events • Rising sea levels • Changes in ocean currents • Changes in animal migration • Rapidly melting glaciers

14. 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

15. 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.”

16. 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.

17. 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.

18. 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

19. Take it to the courts… • Against this background of uncertainexecutive and legislative efforts, the Global Warming debate has moved to the courts.

20. Areas affected by Global Warming Litigation: • Air and water quality • Water quantity • Endangered species • Public health • Public lands management • Urban sprawl • Transportation • International law

21. 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)

22. Defendants (cont.) • Governmental Agencies (EPA, etc.) • Oil and Gas Companies (Exxon Mobile, etc.) • Utility Companies • Power Plants • Automotive Companies (Ford, etc.) • Transportation Companies (trucking companies, etc.)

23. Defendants (cont.) • Delivery Companies (FedEx, etc.) • Toy Manufacturers (Hasbro) • Fiber-Optic Manufactures • Chemical Manufacturers • Railroad (Burlington Northern) • Cruise Lines (Royal Carribean, etc.) • Lawn and Garden Companies (Scotts Miracle Grow)

24. 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?

25. 5 Major Types of Global Warming Litigation I. Nuisance II. National Envir’l Policy Act III. Preemption IV. Clean Air Act V. Information-forcing litigation

26. 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.”

27. 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 • SeeConn. v. Am. Elec. Power, Inc.(2005) and Cal. v. General Motors Corp. (2006)

28. 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

29. NEPA (cont.) • Similar state versions of the NEPA provide an additional means of challenging state and local government actions • SeeFriends of Earth, Inc. v. Watson (2005) (plaintiffs suing governmental investment agencies that financially supported fossil fuel projects without first conducting EAs)

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

31. 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 standardspreempt the more stringent state regulations on which Plaintiffs often rely • SeeCentral Valley Chrysler-Jeep v. Witherspoon (2006)

32. 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)

33. 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 • SeeMass. v. EPA (2007)

34. 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

35. Information-Forcing (cont.) • Freedom of Information Act: allows for the full or partial disclosure of previously unreleasedinformation 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

36. Seminal Federal Case • Massachusetts v. Environmental Protection Agency (2007) • The first and only case the Supreme Court has considered regarding Global Warming.

37. 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

38. 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.

39. 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.

40. 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”.

41. 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;

42. 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.”

43. 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.

44. Potential Defenses to Suit 1. Political Question Doctrine 2. Standing * 3. Factual & Proximate Causation

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

46. 2. Standing (2/3) • Key issue for claims brought by conservation and other public interest groups • On 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?”

47. 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.

48. 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. INJURY 2. CAUSATION 3. REDRESSABILITY

49. “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.”

50. 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?