Maryland Bar Bulletin
Publications : Bar Bulletin : June 2007

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 Bar Bulletin Focus

Enviromental Law    

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.

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Publications : Bar Bulletin: May  2007