Over the past decade, individuals, NGOs, trade associations, communities and even whole nations are increasingly using the federal courts as a venue to address climate change. While some claimants bring suit to enforce or clarify existing laws and regulations, others seek relief from the detrimental effects of increased carbon dioxide emissions. Still others challenge the very legitimacy of climate change law and regulation. How the courts handle these cases can and will continue to fundamentally impact industry, government, law, policy, and the environment.
The following exemplifies the most relevant case law impacting climate change activities of the last decade. Taken together, they illustrate the main challenges plaintiffs have used to bring suit, the core legal defenses that opponents have presented, and the ways in which the federal judiciary is approaching climate change litigation
Click on the links below to view case summaries within each respective area of litigation.
In 2007, the Supreme Court ruled in Massachussetts v. EPA that Greenhouse Gases (GHGs) are air pollutants covered by the Clean Air Act. The Court made clear that the Environmental Protection Agency could regulate Greenhouse Gases under the Clean Air Act, if the Administrator made a determination that greenhouse gas emissions were a danger to human health. In 2009, EPA did just that, and found that greenhouse gases (along with six other air pollutants) threatened the health and welfare of present and future generations. Prior to these findings, parties brought legal challenges questioning whether the Clean Air Act applied to greenhouse gas emissions at all. More recently, challengers questioned whether actions taken by EPA to regulate emissions were outside of their legal authority. Still others have challenged whether federal action (via EPA and the Clean Air Act) preempts states from regulating greenhouse gas emissions. The following cases illustrate these arguments and the associated court holding.
Perhaps the most difficult challenge confronting plaintiffs in climate change litigation is the problem of demonstrating that the emission of GHGs to the atmosphere by a particular activity or facility will give rise to specific impacts on a local area or population. Proving causation, a causal link between the defendants activities and the plaintiffs harm, seems to be a daunting challenge. In the last decade, parties have used a tort (a civil wrong) called nuissance (a legal inconvenience resulting in damage) to challenge defendant corporations whose activities result in large amounts of GHGs being released into the atmosphere, which allegedly lead to global warming events that result in damages. The following cases illustrate how plaintiffs have you used the federal common law nuissance and how the courts have responded.
The National Environmental Policy Act (NEPA) established a U.S. national policy promoting environmental improvement. Of significance, NEPA set up procedural requirements for all federal government agencies to prepare Environmental Assessments (EAs) and Environmental Impact Statements (EISs) whenever environmental effects of a federal project cross a certain threshold. EAs and EISs contain statements of the environmental effects of proposed federal agency actions. The following cases illustrate challenges against government agencies who have allegeldy failed to sufficiently analyze or disclose information about the implications of their projects and programs as they relate to climate change.
Oceans readily absorb carbon dioxide (CO2) emissions from power plants and other human activities. In turn, the CO2 causes seawater to become more acidic, lowering its pH level. This process, known as ocean acidification, impairs the ability of marine animals to build the protective shells and skeletons they need to survive. Certain provisions of the Clean Water Act require EPA to protect waters from pollution, such as ocean acidification. In the following cases, challengers have alleged that the Environmental Protection Agency, in failing to recognize the impacts of ocean acidification on waters, have violated the Clean Water Act.
EPA's 2012 Renewable fules standards require gasoline producers and importers to displace a certain percentage of their total gasoline production with the purchase of cellulosic biofuels.The following case is a challenge brought againts the EPA for its 2012 Renewable Fuels Standard (RFS) volume mandate. Specifically, it challenges the reasonableness of EPA’s decision to require refiners to blend domestic fuel with cellulosic ethanol or pay a penalty.
The Public Trust Doctrine imposes a legal duty on the U.S. Government to hold vital natural resources in ‘trust’ for present and future generations, including protecting the trust asset from damage or loss. In the following cases, plaintiffs claimed that the atmosphere, including the air, is one of the crucial assets protected by the Public Trust Doctrine, and that defendant federal agencies have allowed, facilitated, and contributed to the waste of trust assets, including the atmosphere, by allowing it to become polluted with high levels of human-caused CO2.
Endangered Species Act
The Endangered Species Act (ESA) aims to protect species and the ecosystems upon which they depend. It is administered by the U.S. Fish and Wildlife Service and the Commerce Department’s National Marine Fisheries Service (NMFS). Under the ESA, species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future.
The Obama Administration has repeatedly stated that the ESA is not an adequate or proper legal mechanism to regulate GHGs. However, the effects of climate change ar far reaching. On March 1, 2013, the D.C. Circuit upheld the U.S. Fish and Wildlife Service's (FWS) decision to list polar bears as a threatened species under the ESA after the agency determined that climate change threatens the bear's habitat and range. In particulat the polar bear's primary habitat, sea ice, is rapidly decreasing as a result of climate change.