What’s the Status of Law Suits in the U.S. on Climate Change?

What’s the Status of Law Suits in the U.S. on Climate Change?

Q: What's the status of law suits in the United States on climate change?

A: Given the role of litigation in the past in pushing for environmental laws and their implementation, it should come as no surprise that a number of legal cases have been brought with the goal of forcing regulation of greenhouse gas (GHG) emissions, or in other cases the goal of preventing implementation of GHG regulations. We're also starting to see cases brought seeking damages from GHG emitters. Indeed, some observers are referring to future climate change litigation as analogous to what we’ve seen in the areas of tobacco and asbestos, although I find this analogy far-fetched.

Perhaps most significant right now is that a number of stakeholders are pursuing initiatives intended to jump-start GHG emissions controls by arguing that existing environmental laws and regulations already provide the legal authority for - and even mandate - the regulation of GHG emissions. Four general arguments, and the associated cases, are briefly profiled below:

Argument 1: The U.S. Environmental Protection Agency (EPA) should regulate GHGs under existing provisions of the Clean Air Act (CAA).

In 1999, several environmental groups petitioned EPA to regulate CO2 and other GHGs from new motor vehicles pursuant to the Clean Air Act. In September 2003, EPA concluded that it had no statutory authority to regulate GHG emissions from motor vehicles, and that even if it did have the authority, it was choosing not to regulate "[u]ntil more is understood about the causes, extent and significance of climate change and the potential options for addressing it." EPA’s decision to not proceed with a rulemaking under existing law was challenged in court; in July 2005 the U.S. Court of Appeals for the D.C. Circuit denied the petition. The three judges involved in the case each issued a separate opinion, and the court did not actually reach the question of EPA’s authority under the Clean Air Act. In March 2006, petitioners asked the U.S. Supreme Court to review the case. In a move that surprised many observers, the Supreme Court has accepted the case and it is now pending.

Argument #2: In the absence of federal action, individual states are free to regulate GHG emissions from motor vehicles.

Because of federal preemption rules, states usually cannot impose their own fuel economy standards, since the federal government has already acted in this regulatory area. In July 2002, however, California passed the so-called "Pavley bill" requiring automakers to “achieve the maximum feasible and cost-effective reduction of GHG emissions” from new cars and light trucks starting with model year 2009. California estimates the rules will reduce fleet CO2 emissions by 18 percent in 2020, and almost 30 percent in 2030 (the equivalent of some 60 million tons of CO2 per year).

Not surprisingly, the automakers filed suit at the end of 2004, arguing that California is precluded under federal law from adopting such requirements. While California’s law is the only one of its kind in the country, at least 10 other states have indicated that they will follow California’s lead should the law survive legal challenge. Oral arguments on California’s motion to dismiss in the case were held this past Friday (9/15/2006) in federal court in Fresno, CA.

Argument #3: The National Environmental Policy Act (NEPA) requires assessment of the impacts of climate change when a federal agency undertakes action.

Several environmental groups and two U.S. cities have sued the Export-Import Bank (EIB) and the Overseas Private Investment Corporation (OPIC), two U.S. government agencies, for allegedly illegally provided financing and insurance for oil fields, pipelines, and coal-fired power plants without assessing their contribution to global warming or their impact on the U.S. environment as required by NEPA. In August 2005, the federal made procedural findings allowing the case to move forward. On April 14, 2006, the merits of the law suit were heard in federal court in California, and the parties are awaiting a decision.

Argument #4: Non-statutory legal theories such as public nuisance could force companies to reduce emissions.

In July 2004, eight states and the City of New York filed suit against a number of major utilities arguing that they had violated the common law of nuisance through their GHG emissions. They asked the court to hold the utilities defendants liable for contributing to global warming and asked for an injunction ordering them to cap their CO2 emissions and to reduce them by a specified percentage each year for at least a decade. In September 2005, the federal district court dismissed the case, concluding that the allegations were primarily political in nature, rather than something the courts should appropriate address. The case is currently on appeal.

We obviously don’t know how any of these cases will ultimately turn out, but they do merit close attention. They could dramatically change the course of the regulatory debate over climate change here in the United States.