Santa Clara University

Closing Arguments

Warming up to the idea of climate change litigation?

By Wil Burns, Senior Fellow, Santa Clara Law

This past April, the U.S. Supreme Court in Massachusetts, et al. v. Environmental Protection Agency held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act (CAA) to regulate emissions of heat-trapping gases (predominantly carbon dioxide) from new automobiles. The suit had been brought by 12 states, including California, as well as several cities and non-governmental organizations. Plaintiffs contended that climate change posed serious risks to human institutions and natural systems, and that the EPA had a duty to regulate these emissions.

Justice Stevens, writing for the majority, found that such "greenhouse gases" were an important contributor to climate change, and fit well within the CAA’s definition of "pollutants." Moreover, the Court held that EPA could only eschew regulation if it established that greenhouse gases do not contribute to climate change, and that its other rationale for refusing to issue regulations, including preserving the Executive Branch’s flexibility in responding to climate change, did not comport with Congress’s mandate under the CAA.

The Massachusetts v. EPA decision is one of at least a dozen pending actions related to climate change that have been filed in the United States in the past few years, part of a broader movement of "climate litigation" that has also spurred domestic actions in Canada, Germany, Australia, New Zealand, and Nigeria, as well as in international fora, including the Inter-American Commission on Human Rights, and the World Heritage Committee. Pending domestic actions in the United States include a public nuisance action by the State of California against six auto manufacturers for current and prospective damages in the state associated with climate change (People of the State of California v. General Motors Corporation); a suit by fourteen individuals against a group of energy and petroleum refining companies, alleging that the defendants’ greenhouse gas emissions intensified Hurricane Katrina, increasing the damages suffered by the plaintiffs (Comer v. Nationwide Mutual Insurance); a public nuisance action by several states, the city of New York and several non-governmental organizations against five major power companies (State of Connecticut v. American Electric Power Co., Inc.); and an action by non-governmental organizations and the city of Boulder to compel the Overseas Private Investment Corporation and Export-Import Bank to conduct an environmental review of the impacts of funding of overseas fossil fuel projects (Friends of the Earth, Inc., et al. v. Peter Watson et al.).

While most climate scientists believe that greenhouse gas emissions must be reduced by 60-70% below 1990 levels to avoid the most dire potential impacts of climate change, the primary international legal response, the Kyoto Protocol, mandates only an approximately 5% reduction, and efforts to deepen this commitment are facing some serious hurdles.

Climate change litigation is largely borne out of the frustration of many policymakers and non-governmental organizations over the glacial pace of progress at both the international and national level to address what many believe is the most pressing environmental issue of this generation, and many more to come. Indeed, while most climate scientists believe that greenhouse gas emissions must be reduced by 60-70% below 1990 levels to avoid the most dire potential impacts of climate change, the primary international legal response, the Kyoto Protocol, mandates only an approximately 5% reduction, and efforts to deepen this commitment are facing some serious hurdles. Moreover, the United States, responsible for a quarter of the world’s greenhouse gas emissions, has refused to ratify the Protocol, opting instead for a voluntary, "market-based" approach, which by the government’s own admission will result in greenhouse gas emissions that are 50% above 1990 levels by 2020.

Yet while many commentators believe that the decision in Massachusetts v. EPA portends major payouts by businesses and gut-wrenching changes in corporate conduct and government policymaking, this is by no means assured. Plaintiffs in climate change cases still face imposing proof issues in terms of both general and specific causation. In the context of general causation, many of the potential damages associated with climate change, such as increases in violent weather events or destruction of ecosystems, can be associated with a number of factors other than climate change, including natural perturbations in the system. Judges may feel that such abstruse scientific questions exceed their capabilities, or that such questions are better left to other branches of government with more expertise in the field.

In terms of specific causation, proving what contribution was made by a particular refinery, utility, or car maker, or even a group of such entities, to two centuries of emissions may prove extremely daunting. While the Supreme Court’s standards for attributing climate change to the production of automobiles in Massachusetts v. EPA were not particularly stringent, this was in the context of determining standing only; the threshold for assessing damages by a court will presumably be far higher.

Additionally, any national effort to achieve meaningful reductions in greenhouse gas emissions will require that many hard decisions be made: there will undoubtedly be economic winners and losers moving forward, and the formulation of climate change policy will necessitate profound changes in this country’s energy infrastructure and many other sectors. Courts may be especially chary to intervene where plaintiffs ask for relief that would require private companies to reduce their greenhouse gas emissions; they may deem decisions of this nature to be more legitimately in the province of the elected branches of government. The district court in the above mentioned case of State of Connecticut v. American Electric Power Co., Inc. dismissed plaintiffs’ action on this ground, holding that the case presented "non-justiciable political questions that are consigned to the political branches." While the Supreme Court in Massachusetts v. EPA was willing to rule when presented with what it found was a clear legislative mandate under the Clean Air Act, many of the other cases currently on the federal docket may present fact patterns more similar to those in State of Connecticut.

At the very least, however, climate litigation may serve as a powerful impetus for federal action to address climate change. The high profile nature of many of these cases has helped to reinforce the "inconvenient truth" of climate change among members of the public, and the serious threat that global warming poses to many sectors of our society. This undoubtedly places additional pressure on elected officials to address this issue, as witnessed by the flurry of climate change bills introduced in the 110th Congress. Moreover, corporate interests, facing the prospect of both disparate mandates by individual states (such as California’s ground-breaking Global Warming Solutions Act of 2006) and adverse judicial decisions, have finally begun to seriously discuss the contours of a serious national climate change policy. Whether climate change litigation ever yields judgments of the magnitude of those from asbestos or tobacco litigation may be irrelevant if it serves as the Sword of Damocles that focuses our policymakers on our most pressing environmental issue.