NGO Campaign Addresses NEPA and Climate
A recent spate of activities by environmental organizations shows the expanded scope and sophistication of the campaign by non-governmental environmental organizations (NGOs) to convince, or force, federal agencies to analyze potential climate impacts in environmental impact statements mandated by the National Environmental Policy Act (NEPA). A recent blog addressed efforts to get federal NEPA guidelines amended to require this, but this is just one small step in a wider effort.
Continue Reading...Climate Change Lawsuits Against Fossil Fuel Power: Will They Get Hotter or Colder?
The village of Kivalina, Alaska, located eighty miles north of the Arctic Circle on a barrier island, is falling into the sea. Since the early 1980s, sea ice ‑ which offers seasonal protection from storm surges ‑ has been forming later and melting earlier. As a result, the village is exposed to more winter storms of increasing severity. In 2006, the U.S. Army Corps of Engineers (“CoE”) concluded that the situation in Kivalina had become “dire” and that the entire town would have to be relocated within six years. A group of 400 Kivalina residents have filed suit against twenty petroleum producers, coal-burning utilities, and other energy companies, asserting that their carbon dioxide (CO2) emissions create a public nuisance and that they conspired to mislead the public about climate change. Native Village of Kivalina v. ExxonMobil Corp. et al., CV 08-1138 (N.D. Cal., Filed Feb. 26, 2008). Citing a report by the CoE, the Kivalina villagers allege that environmental changes associated with global warming have exacerbated flooding and erosion threats to Kivalina and other coastal villages in the Arctic. They seek recovery of the estimated $400 million cost to relocate their village, which they claim is a result of the defendants’ climate-changing activities.
By no means is the Kivalina suit the first action in which plaintiffs have sought to recover climate change-related damages from a CO2-emitting industry. Electric utilities and leading automobile manufacturers have each defended similar actions. They defeated these suits by filing motions to dismiss, asserting that the lawsuits raised a political question ‑ how best to address climate change ‑ which is the type of policy determination that should be reserved for the political branches of government, rather than the courts.
So long as the legislative and executive branches remain undecided on climate change, the political question doctrine promises to keep such litigation in check. Many observers, however, believe that Congress eventually will pass, and the President will sign, climate change legislation. At that point, courts may have less ability to dismiss cases on the ground of the political question doctrine. How will these climate change tort actions fare then? In this Legal Backgrounder, we explore the next line of defenses to such actions. In brief, defendants to climate change tort suits likely can assert several other facial challenges, such as lack of standing and preemption, which may stop such litigation in its tracks. Moreover, climate change suits must overcome formidable causation problems. The charge of civil conspiracy adds a new wrinkle: it is the same strategy that forced big tobacco to settle. There are numerous differences, however, between tobacco and CO2, which portend a steeper climb for plaintiffs in climate change tort suits.
Article to be published by the Washington Legal Foundation later this month.
Continue Reading...Who's in the Driver's Seat? Washington vs the States, Agency vs Agency
The National Highway Traffic Safety Administration (NHTSA) recently dealt a blow to both EPA and the states by proposing preemptive federal fuel economy standards (corporate average fuel economy or CAFE standards) that not only negate the states’ efforts to regulate fuel economy and vehicle greenhouse emissions but also directly challenge EPA’s leading role in regulating vehicle emissions. Will the courts, Congress, or a presidential administration sort out the traffic jam over authority to reduce vehicle greenhouse emissions? At this writing, the governors of twelve states are weighing in against what they view as a “cynical” power grab by the NHTSA, but resolution is nowhere in sight. [summary]
Continue Reading...The U.S.'s Existing Climate Protection Laws: Will They Work?
Congress in 2008
Federal climate change legislation may be on the way. The Senate has targeted a vote in June, and the House by the end of the year, although a bill both chambers can agree upon is unlikely until 2009, if then. It would be a great mistake, however, to view 2008 as a lost year on the climate front. The fundamental elements of Senate and House bills will be debated and accessible to all who probe beneath the surface. The fundamental regulatory structure and economic impact of climate legislation will have been thrashed over thoroughly by the end of the year. To interested stakeholders, the time to weigh in is now. [summary]
Obtaining GHG Credits Through Managing Water Supply Systems
Most recent climate-oriented discussions of water supply and quality have focused on the potential for altered precipitation, stream flows, groundwater recharge, and other impacts of regional climate change. These impacts are more likely than not to be severe in some locales, and thought is being given to the development of new infrastructure to address these changes (see related item on climate adaptation). But in addition to these obvious impacts on water supply and quality, it is now apparent that "non-trivial" greenhouse gas emissions are associated with the treatment of drinking water and sewage. [summary]
Continue Reading...Carbon Accounting 101
The stars appear to be lining up for passage of federal climate change legislation in the next year or two. We could back this prediction with a wonkish reading of congressional tea leaves, e.g., industry support for climate change legislation through coalitions such as the U.S. Climate Action Partnership, a Democratic majority in both houses, and pressure by Republican incumbents on the president not to veto climate change legislation because they fear that a presidential veto could hurt their chances in the 2008 elections, but instead we will press on to an equally compelling consideration.
The climate change issue appears to be following the typical trajectory of new environmental laws. First, scientists identify the environmental threat. Then environmental activists amplify the scientists’ findings, usually aided and abetted by dramatic, illustrative harms. Today it’s arctic melt and Hurricane Katrina. Next, the environmental issue is featured on the cover of Time Magazine. Progressive states, typically California and/or New Jersey, enact laws. The resulting patchwork of state regulation causes Congress to begin the search for a national solution. Finally, additional environmental insults (Love Canal, Bhopal) tip broad public opinion from ambivalence to insistence that Congress act.
Climate change has now crossed most of these familiar thresholds. Most scientists had reached consensus on the human role in climate change by the start of the twenty-first century. Former Vice President Al Gore’s film, An Inconvenient Truth, certainly amplified the scientists’ findings. Climate change stories have graced the cover of Time Magazine on numerous occasions during the past few years. Today, the deluge of coverage resembles the streams gushing off melting glaciers. As we go to press, for example, PBS’s Frontline is airing a devasting critique of governmental inaction and obstruction in the face of mounting scientific evidence that the climate challenge must be faced.
Government, in fact, is responding. In 2006, California enacted Assembly Bill 32, which mandates that state sources of carbon dioxide (CO2) reduce emissions to 1990 levels by 2020. In 2007, there were more than 110 climate-related hearings in Congress and 150 bills addressing climate change. For coverage of developments in Congress, see Energy and Environment Daily, or Pew Center on Global Climate Change, What’s Being Done in Congress. All that remains to complete the cycle is the climate-change-driven cataclysm, although some have painted Hurricane Katrina as that event. [summary]
Global Climate Change Under NEPA
Increasingly, the National Environmental Policy Act (NEPA) is being seen as a vehicle for ensuring that the federal government considers the impact of its actions on global climate change. Relying on a string of judicial decisions that require agency NEPA impact statements specifically to address the climate consequences of agency actions, environmental organizations have petitioned the President’s Council on Environmental Quality to conform its NEPA guidelines to the requirements of these cases. Climate will clearly figure prominently in future federal impact statements, and non-federal stakeholders, who often are the real parties in interest in NEPA compliance, would be wise to address climate early and often when developing their NEPA compliance strategies. [summary]
Continue Reading...Summary of the UNFCCC and Plans for Moving Forward
The 1992 United Nations Framework Convention on Climate Change (UNFCCC) sought to launch a global climate change regime. In 2005 the well-known Kyoto Protocol, to which a large group of developed and emerging countries became signatories, laid the groundwork for a detailed system of incentives and targets for carbon emissions reductions, but the Protocol will remain in effect only through 2012. The December 2007 meeting in Bali of the Kyoto Conference of the Parties (COP) began to address a new international climate change treaty to take effect in 2013 upon the expiration of the Kyoto Protocol. Their “Bali Road Map” identified the core issues a new treaty must address: adaptation, mitigation, technology, finance, and cooperative action. [summary]
Continue Reading...Climate Adaptation
As we consider climate legislation, we do not like to be reminded that despite our best efforts, the likelihood is that national and global GHG reductions will not be enough in time to keep regional climate from changing significantly. A new two-year Resources for the Future project, “Adapting to Climate Change,” has as its purpose developing an array of on-the-ground measures to allow our institutions to mitigate the effects of climate change, when and if it occurs. [summary]
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