CCN Independent Studies

Draft of Climate Change 101 for Lawyers Independent Study

Red Sky at Morning, Gus Speth, (pp.1-228)
International Environmental Law & Policy - Hunter, Salzman, Zaelke (pp.609-673)
The Convention and Kyoto Protocol
Pew State & Regional Climate Initiatives/Action Plans (28 states)
UCS Climate Reports (Gulf Region, Great Lakes, CA, IA) (15 states)
Proposed McCain-Lieberman Climate Stewardship Act
- Online Video Interview with McCain/Lieberman

DOMESTIC LITIGATION

NEPA
Similar Suits Abroad
Clean Air Act
Public Nuisance
International Environmental Law & Human Rights

Potential Litigation & Research Topics

For more climate litigation literature, visit the NAELS Climate Law & Policy Page

NEPA

Friends of the Earth, Inc. et al. v. Watson et al., 3:02cv4106 filed August 27, 2002 in the United States District Court for the Northern District of California (San Francisco).

Summary: NGOs and cities sue federal agencies Overseas Private Investment Corporation (OPIC) and Export-Import Bank of the U.S. (Ex-Im). All parties are currently involved in a mediation process. The plaintiffs brought the lawsuit to force OPIC and Ex-Im to comply with APA 5 U.S.C. §701 and NEPA 42 U.S.C. §4332. OPIC and Ex-Im are federal agencies which finance CO2 emitting fossil fuel projects around the world. CO2 is a major cause of global warming. OPIC and Ex-Im's decisions to assist and finance these projects are made without complying with NEPA which requires all federal agencies to conduct EAs for projects which constitute major federal actions that may have a significant effect on the human environment. 42 U.S.C. §4332(2)(c).

SIMILAR SUITS ABROAD

Germanwatch and BUND (The German section of Friends of the Earth) v. The German Federal Ministry of Economics and Labour, Filed June 15, 2004 in the Administrative Court in Berlin.

Summary: FOE Germany filed this against the German equivalent of OPIC-Ex-Im in July 2003. The case is similar to the U.S. NEPA litigation discussed above (one important difference is that the defendant claims the information is a trade secret and therefore protected) and is currently pending review.

Australian NGOs v. Minister of Planning, in Melbourne Australia.

Summary: A collection of NGOs challenged (and won) a federal minister's power to prevent a planning body from considering greenhouse GHG emissions before deciding on the approval a coal mine expansion.

CLEAN AIR ACT

Commonwealth of Massachusetts, et al., Petitioners, v. United States Environmental Protection Agency, Respondent, Case No. 03-1361 (consolidated with Nos. 03-1362 through 03-1368), (Filed in the D.C. Circuit, Oct. 23, 2003).

Summary: NGOs (NRDC & Earth Justice among them), states, cities and territories filed a petition for review of final action of the United States Environmental Protection Agency (EPA) adopting the legal opinion that the EPA had no authority to regulate GHG emissions under the CAA. The EPA also made a final decision denying a petition for rulemaking regarding automobile fuel efficiency standards. The first briefs were filed on June 22, 2004. Petitioners want to force EPA to regulate CO2 under the CAA. Oral arguments are scheduled for April 8, 2005.

PUBLIC NUISANCE

State of Connecticut, et al., v. American Electric Power Company, Inc., et al., 04cv05669 & 04cv5670 (LAP) (DFE) ECF Case (consolidated) filed in United States District Court for the Southern District of New York (New York).

Summary: The AGs from 8 states brought a public nuisance suit against the 5 largest electric utilities companies in the United States. A similar suit filed by local conservation organizations from the North East, represented by the NRDC, has been consolidated with the case. The 5 utilities are the top 5 domestic emitters of carbon dioxide representing roughly 10% of U.S. emissions and 2% of emissions globally. The plaintiffs seek damages based on the effects of climate change caused the emissions of CO2. The utilities have filed a motion for summary judgment and the plaintiffs have filed their reply. The court has yet to decide the motion.

INTERNATIONAL ENVIRONMENTAL LAW & HUMAN RIGHTS

Inuit Circumpolar Conference v. United States of America, in the Inter-American Commission on Human Rights (IACHR), Not Filed.

Summary: The Inuit Circumpolar Conference (ICC) which represents over 150,000 indigenous persons from Russia, Alaska, and Canada is considering suing the United States in the Inter-American Commission on Human Rights (IACHR) "seeking a declaration that the impacts in the Arctic of human-induced climate change infringes upon the environmental, subsistence, and other human rights of the Inuit." The ICC claims that by refusing to ratify the Kyoto Protocol and curtail their greenhouse gas emissions, the United States, the world's largest greenhouse gas emitter, has violated the Inuit's human rights, including their right to property, culture, and subsistence. The case will invoke the 1948 American Declaration on the Rights and Duties of Man. The claim will be filed later this year by the Center for International Environmental Law (CIEL) attorney Donald Goldberg.

POTENTIAL LITIGATION & RESEARCH TOPICS

California GHG Law: On July 22, 2002 California's Governor signed into law AB 1493 (a.k.a. "Pavley Law") which directs the California Air Resources Board (CARB) to develop and adopt regulations that achieve the maximum achievable cost effective reductions in GHG emissions from passenger cars and light trucks sold in California. The regulations, which must be adopted by January 1, 2005, apply only to 2009 models and onwards. Legislation specifically intended to cut the motor vehicle pollution which causes global warming has not been attempted by any other state or nation. The Alliance of Automobile Manufacturers has already threatened to challenge the law on constitutional preemption grounds, arguing that only the federal government has the authority to regulate CO2.
- Research: Federal Preemption.
Carbon Subsidies, GATT Article XX Exceptions & Other Trade Related Issues: European environmental ministers and ministers from other Annex I countries have recently discussed imposing trade measures against the U.S. and/or Australia for trade benefits their industries derive from their countries' withdrawal from the Kyoto Protocol which came into effect on February 16th 2005.
- Research: Would GATT Article XX exceptions (b) or (g) permit any trade measures to be taken against carbon intensive industries in these countries.
- Research: Can these countries establish, under GATT Article XVI or the WTO Agreement on Subsidies & Countervailing Measures, that these industries receive a "carbon subsidy" which would permit other Annex I countries to impose trade restrictions on certain products in response.

Climate Science & Liability: As the consensus surrounding global warming and GHGs builds, how will courts respond when assessing defendant's liability in future cases?
- Research: Compare the actions of tobacco and asbestos companies (companies which funded bogus science to obfuscate the truth in the public sphere and lobbied against legislation regulating their products prior to legal action) to the actions of Exxon, the utilities industry and others with respect to climate change. How did the courts treat those actions in determining liability and foreseeability.
- Research: The Intergovernmental Panel on Climate Change (IPCC) is scheduled to issue its Fourth Assessment Report in 2006. What level of certainty with respect to the relationship between anthropogenic emissions of GHGs and climate change is necessary to seriously impact the prospects for litigation with respect to products liability, strict liability and negligence?
ATCA, Corporate Responsibility, & Other Topics: The following are examples of areas which could have an impact on future climate change litigation.
- Research: ATCA, Human Rights & Climate Change - Due to the lack of forums with enforceable jurisdiction over the United States, environmental lawyers are considering filing a suit against U.S. based polluters under the Alien Tort Claims Act (ATCA). The recent settlement success of Earth Rights International against Unocal in Doe v. Unocal (The energy company settled with Burmese villagers for alleged human rights abuses abroad after unsuccessful attempts to get the case thrown out of U.S. 9th Circuit Court of Appeals) increases the possibility of filing a human rights case based on the "Right to a Healthy Environment" or "cultural genocide" (destroying the environment upon which a culture depends) in U.S. courts. The Association of Small Island States (AOSIS) has for years been considering filing suit in U.S. courts for cultural genocide due to rising seas which are inundating their islands and cultures. Does this case strengthen any potential suit filed by the AOSIS?
- Research: How do corporate laws requiring disclosure of liabilities affect corporations who are potentially liable for climate change or vulnerable to its effects?
- Research: Some state laws require insurance companies to base their weather predictions on the best available data. Yet insurance companies base their models on past weather data and make predictions based on extrapolations from that data. In light of the recent extreme weather (1998 was the hottest year on record, 2002 and 2003 are tied for the second hottest year on record, and the 1990's were the warmest decade on record.) is this still the best available data or should insurers consider the effects of climate change?