Global Warming Litigation
The New Legal Frontier?
Cory P. Balliet, Esquire
Tallman, Hudders & Sorrentino
Pennsylvania Office of
Norris, McLaughlin & Marcus, P.A.
Lecture Overview
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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.
“Greenhouse gases” (e.g. carbon dioxide,
methane, nitrous oxide, CFC’s) trap heat in
the earth’s atmosphere.
Greenhouse
Greenhouse gases
gases
in
in
atmosphere
atmosphere
Solar energy
passes through
Radiant heat
is trapped
CO2: The Most Significant
Greenhouse Pollutant
C + O2
→
CO2
Burning carbon-containing fossil fuels
produces carbon dioxide
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.
CO2
CH4
Main Contributors to Global Warming
Global Warming and Increased
Temperatures
 Top 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 temperatures
Rising water temperatures
Increased extreme weather events
Rising sea levels
Changes in ocean currents
Changes in animal migration
Rapidly 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 quality
Water quantity
Endangered species
Public health
Public lands management
Urban sprawl
Transportation
International 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 Companies
Power Plants
Automotive Companies (Ford, etc.)
Transportation Companies (trucking
companies, etc.)
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)
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.
II.
III.
IV.
V.
Nuisance
National Envir’l Policy Act
Preemption
Clean Air Act
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 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?”
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. INJURY
2. CAUSATION
3. 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.
2.
3.
4.
5.
GHG emission cap
Influx in litigation
Tobacco-style suits
Shareholder derivative
suits
Liability for past behavior
Predictions (cont.)
1.
(1/5)
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.
(2/5)
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.
(4/5)
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 Clients
From Suit
1.
2.
3.
4.
Be careful with new “green
programs”
Be careful with research and
publication of “green” studies
Use modern “emission
technologies”
Comply with all environmental
statutes
Protecting Clients (cont.)
1.
(1/4)
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.
(2/4)
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 coconspirators?
→ Applicable to companies as well as
trade groups, Chambers of Commerce, and
affiliated industry organizations
Protecting Clients (cont.)
3.
(3/4)
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)