Global warming is undeniably a hot topic. Fueled by scientific reports
concluding that global warming likely is caused by human activity and Al
Gore’s Academy Award for An Inconvenient Truth, legislators
and policy makers at the local, state, federal and international levels
are debating who is to blame for global warming and what to do about it.
The political process, however, is not dealing with the issue fast enough
for some people. Creative government officials, environmental advocacy
organizations and plaintiffs’ lawyers have decided to turn up the
heat by trying to effect change through litigation.
Two major types of global warming litigation have emerged over the past
few years. The first broad category of lawsuits is against government agencies
or officials, seeking to force executive or legislative action to address
climate change under various statutory schemes. These lawsuits against
governmental parties have obtained some early favorable rulings. For example,
in Massachusetts v. EPA, the U.S. Supreme Court recently ruled
that the Environmental Protection Agency (EPA) has statutory authority
to regulate carbon dioxide emissions from new motor vehicles and that the
States have standing to sue to force such regulation. The second category
of lawsuits is aimed directly at the industries that allegedly contribute
the most to the greenhouse gases that are considered to be a cause of global
warming, and are based on tort theories such as public nuisance. These
lawsuits against private parties have not yet achieved much success, but
are still working their way through the court system.
Lawsuits Against Governmental Parties
One of the most significant cases so far seeking to force government
action on global warming is Massachusetts v. EPA, which was decided
by the U.S. Supreme Court in April 2007. In Massachusetts v. EPA,
a group of states, local governments and private organizations sued EPA
alleging that EPA had abdicated its responsibility under the Clean Air
Act (CAA) to regulate carbon dioxide and other greenhouse gases emitted
from new motor vehicles. The EPA argued that the plaintiffs lacked standing
to sue, that carbon dioxide was not a “pollutant” under the
CAA and even if it were, the EPA had discretion to decline to regulate
it. The Supreme Court held that the plaintiffs had standing to challenge
EPA’s denial of their rulemaking petition and that greenhouse gases
are included within the CAA’s “sweeping” definition of “air
pollutant.” The Court rejected EPA’s asserted reasons for refusing
to regulate greenhouse gases, which included policy considerations, and
remanded the matter for EPA to ground its reasons for action or inaction
within the CAA itself.
In Friends of the Earth, Inc. v. Mosbacher, two nonprofit organizations
and four cities sued the federal government’s Overseas Private Investment
Corporation and the Export-Import Bank, alleging that the defendants contribute
to global warming by providing loans, insurance and other financing for
overseas fossil fuel projects. The plaintiffs seek an order requiring the
defendants to comply with the National Environmental Policy Act (NEPA)
by preparing an Environmental Impact Statement for federal projects that
may have a significant effect on the environment. The U.S. District Court
for the Northern District of California denied a preliminary motion to
dismiss for lack of standing, ruling that the plaintiffs had shown a reasonable
likelihood that emissions from the projects would harm their specific interests
and that there was a causal connection between the defendants’ funding
and the projects themselves. On March 30, 2007, the court granted partial
summary judgment in favor of the defendants on the ground that the plaintiffs
did not establish that defendants have energy programs which require a
programmatic analysis under NEPA. The court, however, also denied the parties’ cross
motions for summary judgment on the issue of whether the identified projects
qualified as major federal actions for purposes of NEPA. The case is still
pending.
Lawsuits Against Private Industries
Litigation against private parties is typically based on common law tort
theories such as public nuisance, trespass and unjust enrichment. Filed
in July 2004, Connecticut v. American Electric Power was the first
major climate change suit filed targeting private corporations as defendants.
In Connecticut v. American Electric Power,eight states, the City
of New York and three nonprofit groups sued five electric utilities to
abate what plaintiffs described as the public nuisance of global warming.
According to plaintiffs, the defendants are the “five largest emitters
of carbon dioxide in the United States” and their emissions “constitute
approximately one quarter of the U.S. electric power sector’s carbon
dioxide emissions.” The plaintiffs sought an order enjoining each
of the defendants to abate its contribution to the nuisance by capping
its emissions of carbon dioxide and then reducing its emissions by specified
percentages for at least 10 years.
In September 2005, the U.S. District Court for the Southern District
of New York dismissed the actions on the grounds that they present non-justiciable
political questions that are more appropriately addressed by the political
branches of government, not the judiciary. The court observed that:
The scope and magnitude of the relief Plaintiffs seek reveals the
transcendently legislative nature of this litigation . . . . The explicit
statements of Congress and the Executive on the issue of global climate
change in general and their specific refusal to impose the limits on
carbon dioxide emissions Plaintiffs now seek to impose by judicial fiat
confirm that making the “initial policy determination[s]” addressing
global climate change is an undertaking for the political branches.
The case is on appeal to the U.S. Court of Appeals for the Second Circuit.
Although the case was argued on June 7, 2006, the court has not yet issued
a decision.
A second major lawsuit against private entities was filed in September
2005 by several Mississippi property owners seeking to represent similarly
situated property owners in Mississippi who suffered losses as a result
of Hurricane Katrina. In Comer v. Murphy Oil U.S.A., the plaintiffs
allege that greenhouse gas emissions from the defendants – an array
of oil and coal companies, electric companies and chemical manufacturers – have
demonstrably changed the Earth’s climate, which has consequently
increased the frequency and intensity of hurricanes, including Hurricane
Katrina. The plaintiffs seek money damages under various tort theories
including public and private nuisance, trespass, civil conspiracy and unjust
enrichment.
In an opinion dismissing without prejudice various insurance company
and mortgage lender defendants issued in February 2006, the U.S. District
Court for the Southern District of Mississippi cautioned that it foresaw “daunting
evidentiary problems for anyone who undertakes to prove, by a preponderance
of the evidence, the degree to which global warming is caused by the emission
of greenhouse gases; the degree to which the actions of any individual
oil company, and individual chemical company, or the collective action
of these corporations contribute, through the emission of greenhouse gases,
to global warming. . . .” The plaintiffs subsequently amended their
complaint and additional dispositive motions are still pending.
In the third major global warming lawsuit against private parties, California
v. General Motors Corp., the State of California sued six major
automobile manufacturers, alleging that the defendants’ vehicles
emit over 20 percent of carbon dioxide emissions in the United States
and over 30 percent of emissions in California, and that these emissions
have contributed to the “public nuisance” of global warming.
The defendants’ motion to dismiss the case was argued in March
2007, but the court has not yet issued a decision.
Conclusion
The cases described above are not all of the global warming lawsuits
currently pending around the country, and could be only the tip of the
(melting) iceberg. Any business with significant greenhouse gas emissions
is potentially the target of the next lawsuit. Although the plaintiffs
in global warming lawsuits face significant challenges of proof, it remains
to be seen how the courts will ultimately decide the merits of these cases.
Even if these lawsuits do not ultimately succeed in court, they are focusing
more public attention on the consequences of global warming.
Margaret Witherup Tindall is a member of the
Environmental & Energy and Litigation Departments of Gordon, Feinblatt,
Rothman, Hoffberger & Hollander, LLC. She concentrates her practice
in environmental law and complex commercial litigation.
