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Federal Court Activity

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.

Clean Air Act/Pre-emption Cases

In 2007, the Supreme Court ruled in Massachusetts 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.

Common Law Nuisance Claims

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 nuisance (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 nuisance and how the courts have responded.

National Environmental Policy Act Cases

The National Environmental Policy Act (NEPA) established a U.S. national policy promoting environmental improvementt. 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 allegedly failed to sufficiently analyze or disclose information about the implications of their projects and programs as they relate to climate change.

Clean Water Act Cases

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.

Renewable Fuels Standards Cases

EPA's 2012 Renewable fuels 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 against 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.

Public Trust Doctrine Cases

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 are 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 particular the polar bear's primary habitat, sea ice, is rapidly decreasing as a result of climate change.

National Environmental Policy Act Cases

Alec L. v. Jackson (United States District Court for the District of Columbia, May 31, 2012). 

Five children, along with the groups Kids vs. Global Warming and WildEarth Guardians, sued the heads of several federal agencies for failing to adequately address global warming. The plaintiffs proceeded on the theory that the atmosphere is a commonly shared public resource that defendants, as agency heads, have a duty to protect under the public trust doctrine. As relief, plaintiffs asked for an injunction directing the named federal agencies to “take all necessary actions to enable carbon dioxide emissions to peak by 2012 and decline by at least six percent per year beginning in 2013.” Defendants and intervenors argued in a motion to dismiss that plaintiffs failed to state a valid claim for relief. The district court agreed and dismissed the suit.  Relying on the recent Supreme Court decision PPL Montana, LLC v. Montana (2012), the court held that the public trust doctrine is a matter of state, not federal, law. It further held that even if the public trust doctrine were a federal common law claim, such a claim has been displaced in this case by the Clean Air Act (as was similarly held in the 2011 Supreme Court case American Electric Power Co. v. Connecticut).

Loorz v. Jackson (United States District Court for the District of Columbia, April 2, 2012). 

A federal district court in Washington D.C. allowed business groups to intervene in a lawsuit that seeks to require the federal government to establish a plan for an immediate cap on GHG emissions and start lowering these emissions by six percent a year beginning in 2013. Several advocacy groups, including Our Children’s Trust, filed the federal lawsuit in May 2011 along with similar actions in many states. The lawsuit alleges that the federal government has a duty under the public trust doctrine to reduce GHG emissions in the atmosphere. So far, no state challenges have been successful.

Association of Irradiated Residents, et al.  v. California Air Resources Board (Superior Court of California for the County of San Francisco, October 20, 2011)

Background:  On September 27, 2006, then Governor of California Arnold Schwarzenegger signed into law the Global Warming Solutions Act of 2006, or AB 32. The law seeks to fight climate change through comprehensive program reducing GHG emissions from all sources statewide. The act requires the California Air Resources Board (CARB) to develop regulations and market mechanisms that will cut the state’s GHG emissions to 1990 levels by 2020—a 25% reduction statewide.

On December 17, 2010 CARB selected a cap-and-trade program as the market mechanism to cut the state’s GHG emissions. CARB scheduled the program to take effect in 2012, placing a limit that would decrease by two percent each year through 2015. From 2015 through 2020, the proposed limit would decrease by three percent annually. AB 32’s rules would first apply to some of the major emitters—utilities and large industrial plants. In 2015, the rules would apply to fuel distributors as well, eventually totaling 360 businesses throughout California. The market would begin with a distribution of free allowances to businesses accounting for approximately 90 percent of the business’s overall emissions; however, for any additional emissions, the business must purchase the necessary allowances.

Case Discussion and Holding:  On December 19, 2010, two days after CARB’s selection of a cap-and-trade program, a number of associations—among them the Association of Irritated Residents (AIR)—filed suit against CARB. The complaint alleged that CARB failed to meet the requirements of AB 32 as well as those for the California Environmental Quality Act (CEQA). AIR asked the court to require CARB to correct the deficiencies under both AB 32 and the CEQA before allowing implementation to proceed.

AIR alleged that CARB violated the requirements of AB 32 in three ways. First, AIR claimed CARB excluded sectors of the economy from emissions controls. Thus, selecting a cap-and-trade program could not allow for a determination of whether potential reduction measures achieved maximum technologically feasible and cost effective reductions. Second, CARB did not adequately consider the total costs and benefits to the environment, economy and public health before selection of its plan. Finally, CARB did not consider—as instructed to do in AB 32—information regarding GHG emission programs throughout the United States and the world.

The Court determined that the implementation and interpretation of AB 32 was delegated to CARB; thus, on review, the Court largely deferred to CARB’s findings and interpretations under an “arbitrary and capricious” standard of review. This standard affords CARB a “wide latitude” for interpretation and implementation, and challenging a determination under this standard is an extraordinarily difficult task. In this case, AIR was unable to overcome this burden, and the Court held that CARB’s findings satisfied the requirements of AB 32.

AIR also claimed that CARB violated the requirements under the CEQA in three ways. AIR’s first claim was that CARB did not “adequately analyze the impacts of the measures described” in the plan. Second, AIR claimed that CARB did not sufficiently consider alternatives to their chosen plan. Finally, in light of the first two allegations, AIR claimed that CARB approved and implemented its plan before completing the necessary environmental impact review (EIR).

In reviewing CARB’s compliance with the CEQA, the Court used a lesser standard—abuse of discretion. Under this standard, CARB’s findings would be upheld unless there was “no substantial evidence” supporting its decision or CARB did not proceed in a manner required by law. On the first claim, the Court found that CARB did not need to provide a comprehensive analysis of the various details of the plan that would be implemented at a later date. However, on AIR’s second and third claims, the Court found CARB in violation of the CEQA. With regard to CARB’s failure to analyze alternatives, the Court noted that CARB provided five alternatives to the selected plan. The first alternative, “no project,” received 10 pages worth of discussion in the documentation supporting CARB’s plan. However, the total discussion for the other four alternatives yielded only three pages in the same document. The Court was unsatisfied that the other four alternatives received sufficient analysis, and held that CARB violated the CEQA stating that CARB’s “analysis provides no evidence to support its chosen approach.” The Court also decided the third claim against CARB. On this issue, the Court treated a resolution adopted by CARB at a hearing in December 2008 as initiating the approval of CARB’s plan. However, the finalization of CARB’s CEQA review was not finalized until May 2009. In light of CARB’s “jumping the gun,” the Court held that CARB had not complied with CEQA’s requirements.

In response to CARB’s failures under the CEQA, the Court issued an injunction preventing any further implementation of the measures contained in the selected plan until CARB has satisfied the requirements of the CEQA.

Center for Biological Diversity v. NHTSA (Ninth Circuit, 2007)

Eleven states, the District of Columbia, the City of New York, and four public interest organizations challenged a rule promulgated by the National Highway Traffic Safety Administration (NHTSA).  The rule was entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011” and set corporate average fuel economy (CAFE) standards pursuant to the Energy Policy and Conservation Act (EPCA) – prior to the passage of the new energy bill (EISA).  The rule was significant in three ways.  The rule set CAFE standards for light trucks, including SUVs, minivans, and pickup trucks, for the model years 2008-2001.  The rule set new CAFE standards using its traditional method, fleet-wide average, for model years 2008-2010.  The rule also created a new CAFÉ structure that sets “varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix.”  The rule was challenged by the petitioners under the EPCA and the National Environmental Policy Act (NEPA).   

The petitioners’ complaint argued that the NHTSA is “arbitrary, capricious, and contrary to the EPCA because (a) the agency’s cost-benefit analysis does not set the CAFE standard at the ‘maximum feasible’ level and fails to give due consideration to the need of the nation to conserve energy; (b) its calculation of the costs and benefits of alternative fuel economy standards assigns zero value to the benefit of carbon dioxide (CO2) emissions reduction; (c) its calculation of costs and benefits of alternative fuel economy standards fails to evaluate properly the benefit of vehicle weight reduction; (d) Reformed CAFE standards will depend on manufacturer fleet mix and not guarantee a minimum average fuel economy or ‘backstop’; (e) the transition period during which manufacturers may choose to comply with either Unreformed or Reformed CAFE is contrary to the ‘maximum feasible’ requirement and unnecessary; (f) it perpetuates the ‘SUV loophole,’ which allows SUVs, minivans, and pickup trucks to satisfy a lower fuel economy standard than cars; and (g) it excludes most vehicles rated between 8,500 and 10,000 pounds gross vehicle weight (comprised mostly of large pickup trucks) from any fuel economy regulation, even though these vehicles satisfy the statutory criteria for regulation.”

The petitioners also argued that NHTSA’s Environmental Assessment (EA) under NEPA was inadequate because it fails to sufficiently examine greenhouse gas implications.  Petitioners also claimed the EA failed to analyze a reasonable range of alternatives or examine the rule’s cumulative impact.  Additionally, petitioners argued that NEPA requires that an Environmental Impact Statement be prepared as opposed to the less exhaustive EA, because a properly performed EA would have shown “significant impacts” which would then trigger the requirement of an Environmental Impact Statement.  

The court found in an unanimous decision that “the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class.”  The court first rejected the rule because the cost-benefit analysis did not include the cost of climate change caused by carbon dioxide.  The court also discredited contrary precedent by stating more is now known about climate change, and Mass. v EPA is more relevant than past cases where climate change science was allowed to be ignored.  The rule was then criticized for not having a “backstop” that would prevent companies from simply building bigger vehicles, which would then be allowed to produce higher emissions under the rule’s system.  The court rejected NHTSA’s arguments that this was done to account for consumer preferences stating that consumer demand cannot be the sole factor dictating the necessity of a “backstop.”  The court then challenged the “SUV loophole,” which allows SUV’s and minivans to be characterized as “light trucks” instead of “passenger automobiles” despite being predominantly used for the transportation of passengers.  The court ordered NHTSA to reexamine the classifications and provide new definitions or sufficient reasons for the SUV and minivan classification.  

The court also found “the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment” because the “impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.”  The court found that climate change’s global nature and influence of actions outside of NHTSA’s control did not allow the agency to avoid considering the effects of the rules impact.  Additionally, the court rejected NHTSA’s argument that an EA was adequate because the CAFE standards were reducing carbon.  The court countered that the standards merely decrease the rate of carbon contribution from new cars and that NHTSA does not offer sufficient analysis to support its finding of no significant impact.  The court then remanded the case to “NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement.”  

View the case document here

Common Law Nuisance and Tort Claims

Comer v. Murphy Oil USA, Inc.  (S.D. Miss. Aug. 30, 2007).

A group of Gulf Coast property owners filed a lawsuit against energy companies for their contributions to climate change, which the plaintiffs claimed contributed to the intensity of Hurricane Katrina.  The plaintiffs sought damages under the tort theories of unjust enrichment, civil conspiracy and aiding and abetting, public and private nuisance, trespass, negligence, and fraudulent misrepresentation and concealment.

The defendants were granted their motion to dismiss, because the court found that the plaintiffs did not have standing and raised non-justiciable questions according to the political question doctrine.  The standing decision was based on the Court’s determination that the harm was not traceable to individual defendants.  The Court’s finding of a non-justiciable question was based on the Court’s determination that more guidance from the executive and legislative branches was necessary in order for the court to create a culpability standard.  The Court also dismissed claims against parties who did not join the motion to dismiss sua sponte, or without provocation from a party before the court, due to the plaintiffs’ lack of standing. 

Procedural History: The plaintiffs thereafter filed an appeal with the Fifth Circuit Court of Appeals, which reversed the district court in part in 2009.  The reversal was vacated when the Fifth Circuit agreed to rehear the appeal en banc.  Before the rehearing, however, the appellate court lost its quorum and appellate rules required its dismissal.  Because the Fifth Circuit’s opinion had already been vacated, the 2007 district court dismissal was reinstated.  When the Supreme Court denied the plaintiffs’ request for a writ of mandamus, they filed Comer II in 2011.
See below for case outcome.

Comer v. Murphy Oil USA (United States District Court Southern District Court of Mississippi, March 20, 2012). 

The same court that dismissed Comer I dismissed Comer II  on procedural grounds, holding that the doctrines of res judicata and collateral estoppel bar claims for trespass, nuisance, and negligence against oil, coal, electric, and chemical companies for damages allegedly stemming from Hurricane Katrina. The lawsuit alleged that the companies’ activities amounted to the largest sources of GHG emissions and that climate change led to high sea temperatures and sea level rise that fueled the hurricane, which in turn damaged their property. The court held that the lawsuit was nearly identical to lawsuit the individuals had filed in 2005. The court also found that the plaintiffs lacked standing because their claims were not fairly traceable to the companies’ conduct, that the lawsuit presented a non-justiciable political question, that all of the claims were preempted by the Clean Air Act, that the claims were barred by the applicable statute of limitations, and that the plaintiffs could not demonstrate that their injuries were proximately caused by the companies’ conduct.  In the 2005 lawsuit, the district court granted defendants’ motion to dismiss. On appeal, a panel of the Fifth Circuit partially reversed, holding that plaintiffs had standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims presented nonjusticiable political questions. The Fifth Circuit subsequently granted a motion for en banc review, but then because of a loss of quorum, the court dismissed the en banc review, which had the effect of reinstating the district court decision dismissing the case. The plaintiffs appealed for a writ of mandamus to the U.S. Supreme Court, which was denied.

Kivalina v. ExxonMobil Corp., et al. (2008)

The Kivalina complaint was filed February 26, 2008 by the native Inupiat village of Kivalina and is currently being litigated.   The complaint alleges that defendant energy and electric producers’ actions released carbon dioxide, which fueled the effects that climate change is having on the village.  Kivalina is a village of approximately 400 people located on the tip of a barrier reef about 70 miles above the Arctic Circle in Alaska.  The village must be relocated because the melting of ice which formerly acted as a wave barrier.  Without this barrier, the village is beginning to fall into the ocean.  Both the U.S. Army Corp of Engineers and the U.S. Government Accountability Office concluded that the ancestral home of the Inupiat must be relocated at an estimated cost of $95 million to $400 million.  

First, the complaint states claims of public and private nuisance under federal and, in the alternative, state law.  A nuisance occurs when a defendant unreasonably or substantially interferes with the enjoyment of one’s property.  Nuisance claims have been rejected by all previous courts in the climate change context.  The main problem with a nuisance claim for climate change damages has been showing that individual polluters’ emissions were the proximate cause of the plaintiffs’ harm and to what degree that harm was increased due to the defendant’s emissions.  These causation questions also trigger separation of powers issues as well.  

The plaintiffs hope to avoid these causation issues through the additional claims of civil conspiracy and “concert of action.”  These claims allow the plaintiff to hold multiple defendants joint and severally liable when it is impossible to determine which defendant is responsible for the individual harm.  The complaint claims the defendants “conspired to create false scientific debate about global warming in order to deceive the public.”  Methods mentioned in the filing include the using front groups, purchasing and authoring misleading advertising, funding critics of questionable expertise, denying the scientific community’s current views, and denying the effects of climate change on the Arctic.  The complaint also states that the defendants engaged in these activities despite the fact they “knew or should have known of the impacts of their emissions on global warming and on particularly vulnerable communities such as coastal Alaskan villages.”  The complaint alleges that profits and the ability to continue to profit without addressing climate change were placed above the need to prevent harm.

In order for the village to prove a civil conspiracy and concert of action, the plaintiffs are using a strategy similar to that of state governments against the tobacco companies.  States in those suits used concert of action and civil conspiracy theories based upon fraud claims based on both common law and statutory law.  Civil conspiracy only requires that two or more persons enter into an agreement to commit a wrongful act that results in harm.  Here the plaintiffs claim that the defendant corporations agreed to perpetuate a misinformation campaign on the public, which resulted in harm to the plaintiffs and the public.

A concert of action can occur in three ways.  The first requires a defendant to commit a tortious act in concert with another or pursuant to a common design.  The second occurs when the defendant knows that the other's conduct constitutes a breach of a duty and gives substantial assistance or encouragement to conduct the breach.  The third way of committing a concert of action tort occurs when one gives substantial assistance to another in accomplishing a tortious result and its own conduct, separately considered, constitutes a breach of duty to the third person.  In this instance the plaintiffs claim that the defendants acted in concert to provide misleading and false information so as to continue to cause the nuisance, global warming.  

Native Village of Kivalina v. Exxonmobil, et al. (Ninth Circuit, September 21, 2012). 

Background: This case was originally filed on February 26, 2008 (see case above).

On September 21, 2012, the Ninth Circuit unanimously affirmed the Federal District Court’s decision to dismiss the lawsuit.  In doing so, it held that federal courts are blocked from providing judicial relief in this area because when there is a federal statute that speaks directly to the issue posited by the federal common-law, (I.e. the Clean Air Act), courts must find that the federal common law has been displaced by that statute.  In his decision, Judge Sidney Thomas relied heavily on the U.S. Supreme Court’s decision in American Electric Power Co. that “Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.” In essence, the Ninth Circuit concluded that the regulation of greenhouse gas emissions via a federal statute (Clean Air Act) extinguished Kivalina’s federal common law public nuisance damages and abatement actions.

Significance: With the Supreme Court’s decision in American Electric Power Co., (AEP) the ability to successfully bring a common law nuisance suit associated with damage from greenhouse gas emissions was effectively curtailed.  While the AEP decision focused only on claims for injunctive relief under the federal common law of public nuisance in the context of climate change, the decision in Kivilina uses the same theory of displacement to extend the bar to cases seeking monetary damages. Now, the only possible basis for other common law nuisance suits would be state common law.

Status: In March 2013, The Kivalina village filed a petition for a writ of certiori with the U.S. Supreme Court.

American Electric Power Co. v. Connecticut (2009)


In 2004, eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin) and New York City filed a complaint against the five largest emitters of carbon dioxide in the United States (American Electric Power, Southern Company, TVA, Xcel Energy and Cinergy Corp.) in the District Court of New York. Their complaint sought “abatement of the defendants’ ongoing contributions to a public nuisance.” The complaint relied on reports from the Intergovernmental Panel on Climate Change and the U.S. National Academy of Sciences to support the causal link between increased greenhouse gas emissions and global warming. It listed current injuries from climate change, for example, flooding in California from earlier melting of snowpack, and expected future injuries if emissions were not abated. The relief sought by the plaintiffs included requiring the defendants to cap their carbon dioxide emissions and to reduce them over time. A similar complaint was filed by three land trusts (Open Space Institute, Open Space Conservancy, and Audubon Society of New Hampshire).

The District Court dismissed the compliant ruling that the case raised a “non-justiciable political question” – an issue not well suited for the court’s to decide. It ruled that the questions raised in the complaint involved balancing the costs of reducing greenhouse gas emissions, the benefits from such actions, and the foreign policy implications and that balancing such interests required an “initial policy determination” that should first be made by another branch of government (Congress or the Executive Branch) that is better suited to such deliberations.

Second Circuit Court’s Decision

On appeal, the 2nd Circuit Court rejected the District Court’s claim that the case presented a political question better addressed by another branch of government. It stated, “Well settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing plaintiffs’ claims and that the federal courts are competent to deal with these issues.” It goes on to say that simply because a matter has political ramification, this is not a reason by itself for restricting action by the courts. The 2nd Circuit’s decision also looks at whether Congress has already spoken to the issue of limiting global warming and therefore has displaced any common law basis for action. After reviewing existing statutes, including the Clean Air Act (CAA), it concluded that no such displacement has yet occurred. Finally, the 2nd Circuit Court’s decision goes on to address the issue of standing and determined that the states do have a legitimate interest in protecting their natural resources and the health of their citizens and that the redress sought by the plaintiffs would reduce the harm alleged. The decision concludes by quoting from a water pollution case decided by the Supreme Court (Illinois v. Milwaukee, 406 U.S. 91 (1972) and applying it to greenhouse gas emissions: “It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases.” The defendants may appeal the 2nd Circuit’s decision or the case will be returned to the District Court and heard on its merits.

American Electric Power Co. v. Connecticut (U.S. Supreme Court, June 20, 2011).

The Supreme Court “granted certiorari”—chose to hear—oral arguments challenging the ruling by the 2nd Circuit Court of Appeals in Connecticut v. AEP (see above).  The suit brought by eight states and New York City (along with three land trusts) sought to use the federal common law of nuisance as grounds for obtaining reductions in carbon dioxide emissions from the utilities named in the suit. The District Court had dismissed the case on the grounds that the claim presented a “political question” that could more appropriately be addressed by another branch of government. The Second Circuit’s decision ruled that the claims do not fall within the political question exclusion and that the plaintiffs had standing to bring the case. The appeals court decision vacated the lower court’s decision and sent the case back to the District Court for further proceedings.

The case came to the Supreme Court through a petition for a writ of certiorari, which was filed by the defendant electricity producers. The Court granted the petition “without limitation.” This grant allows the Court to hear three questions that were posed by the petitioners. The questions in the petitioner’s writ were, first, whether the plaintiffs lack standing to sue; second, whether the Clean Air Act displaces the federal common law of nuisance; third, whether the claim is a political question that should be dismissed.

The U.S. Supreme Court was asked to decide whether a party can assert a federal common law nuisance claim against a company’s carbon dioxide emissions. In a unanimous (8-0) decision, the U.S. Supreme Court ruled that plaintiffs could not invoke a federal common law public nuisance claim against the electric power companies.  Building on their 2007 decision in Massachusetts v. EPA, the Court held that in passing the Clean Air Act, Congress had authorized federal regulation of greenhouse gas emissions and in doing so had effectively “occupied the field” thereby displacing  any common law claims. The Court described EPA as being far better positioned than any federal judge to develop emission control requirements to limit greenhouse gas emissions.  Importantly, the Court also made clear that any action taken pursuant to the Clean Air Act by EPA concerning greenhouse gas regulations would be subject to judicial review, clarifying that such challenges are appropriately brought under the Clean Air Act and not as federal common law nuisance claims.  The Court remanded the case to the United States Court of Appeals for the Second Circuit to consider whether the Clean Air Act also displaces the plaintiffs’ claims under state nuisance law.

Conclusions: Litigation against the harmful effects of climate change and GHG emissions cannot rely on the federal common law of nuisance because it has been displaced by the Clean Air Act.

Implications:  This case effectively marks the end of the federal common law of public nuisance in the climate change litigation context.  Specifically, the Court’s decision appears certain to lead to the dismissal of claims in which plaintiffs have invoked federal nuisance law to pursue relief for climate change-related harms.   Furthermore, because the eight Justices were equally divided on jurisdictional issues, the Court’s decision left in place the Second Circuit’s holdings that plaintiffs had standing to assert climate change injuries in federal court, and that such claims are not “political questions,” meaning they are justiciable.  Unless Congress intervenes to take away EPA’s authority to regulate greenhouse gas emissions under the CAA, the Supreme Court has barred the door for future federal common law nuisance claims.

California v. General Motors, et al., 2007 U.S. Dist. LEXIS 68547 (N.D. Cal. 2007).

California sued six automakers and claimed that the companies’ greenhouse gas emissions contributed to climate change which amounted to a public nuisance under federal common law and, alternatively, public nuisance under California law.  The state sought joint and several liability against the automakers for “creating, contributing to, and maintaining a public nuisance.”  The plaintiffs requested monetary damages, attorney’s fees, and declaratory judgment for future expenses and damages caused to California by climate change.  

The defendants replied by seeking to dismiss the case on four grounds:  (1) the case raises nonjusticiable issues; (2) the complaint fails to state a valid claim under federal common law; (3) the complaint fails to state a valid claim under California law; and (4) the California public nuisance claim is preempted by federal law.  The court found the “threshold issue” to be whether the claim raises a nonjusticiable political question outside of the court’s jurisdiction.  

Nonjusticiable or political questions are those that are better answered by the legislative or the executive branches due to concerns with a court’s ability to identify the duty, the breach of the duty, or a remedy necessary to protect the right in question.  These cases touch on questions of public policy, foreign policy, and political issues that are deemed inappropriate for courts by the Constitution.  If a decision requires the court to create law in a way that too closely resembles legislating or carry out laws in a way that overly infringes on the discretion of the executive, the court refrains from reaching a decision on the issue due to a lack of jurisdiction.  

The court cited the six formulations which indicate the existence of nonjusticiability from Baker v. Carr.  A finding of any one of these formulations results in a nonjusticiability determination.  The court found overlap among the indicators, but ultimately found the third indicator, “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” to be the most relevant.  The court referred to Connecticut v. AEP and cited the case throughout its analysis.  The court ultimately concluded that balancing “the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development” is a “policy determination to be made by the political branches.”  The Court also cited the political branches’ actions and inactions as well as comprehensive legislative schemes under the Clean Air Act and Energy Policy and Conservation Act as further support for a finding of nonjudicial discretion in reference to the federal common law nuisance claim.  

The court distinguished the case from Massachusetts v. EPA.  First, the court noted that the Supreme Court allowed standing based on the “notion that certain constitutional principles of sovereignty afford the States ‘special solitude’ to seek judicial review of decisions by federal regulatory agencies because the States have ‘surrendered’ to the government their right to engage in certain forms of regulations.”  Second, the Court noted that the Supreme Court determined that the federal government through the EPA has the authority to regulate carbon dioxide.  Accordingly, the court reasoned that the Supreme Court allowed standing in Mass. v. EPA so that the state could challenge a policy determination as a “procedural right” to challenge an EPA administrative decision as opposed to an action in tort against private parties.  Because this case was filed against private parties, Mass. v. EPA does not offer such a procedural right for standing in this case.  

The court also found two other formulations from Baker v. Carr that were relevant to a finding of a non-justiciable political question.  For its second nonjusticiable federal question determination, the court analyzed the formulation which requires the court to determine “whether the issues before the court implicate a textually demonstrable constitutional commitment to the political branches of government.”  The court determined that the textual commitments of interstate commerce and the foreign policy to the political branches were implicated by the plaintiff’s attempt to compel damages from the defendants’ lawful worldwide sales.  Potential commerce implications could result from greenhouse gas emitters being subject to a “judicially-created tort for doing nothing more than lawfully engaging in their respective spheres of commerce with those States.”  Foreign policy implications arose from the political branches weighing in on the issue and deciding to refrain from any unilateral commitment to reducing emissions.  Because of this deliberate inaction, the court reasoned that imposing damages on emissions would result in a conflict with the political branches constitutional commitment to foreign policy issues.  For these additional reasons, the federal common law global warming nuisance tort is a nonjusticiable political question.

The court’s final Baker v. Carr indicator requires a court to decide “whether there are judicially discoverable or manageable standards available to resolve the question before it.”  The court found that determining what is “an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or determining who should bear the costs” would require a policy decision due to a lack of an existing “legal framework or applicable standards.”  Because of this indicator and the two discussed above, the court found a nonjusticiable political question and granted the motion to dismiss the federal common law global warming nuisance claim.

The court also distinguished previous transboundary nuisance cases on grounds that the remedies sought were to enjoin the nuisance rather than monetary damages, and that there is no guidance for assessing plaintiff’s contribution to warming.

The court did not reach a conclusion as to whether a federal common law nuisance claim exists due to the finding of a nonjusticiable federal question.  The court also found the state public nuisance claim to be precluded from jurisdiction because the nonjusticiability finding left the plaintiffs without a sufficiently substantial federal claim necessary to exercise supplemental jurisdiction over state law claims.  The plaintiffs have filed an appeal with the Ninth Circuit Court of Appeals.

View the case document here

The 2008 Candidates and Climate Change: A Guide to Key Policy Positions

For the first time, both major party candidates for the presidency are deeply concerned about global climate change and publicly support a mandatory, economy-wide cap-and-trade system for reducing the U.S. greenhouse gas (GHG) emissions that contribute to global climate change. Global climate change now occupies a place of unprecedented importance in American politics, as the debate has advanced beyond the causes of global climate change to the actions needed to address it. This guide outlines key climate positions of Sen. John McCain and Sen. Barack Obama, examines the records of their respective vice-presidential nominees, and details relevant portions of the Republican and Democratic Party platforms, with links to related resources focused on critical climate change policy issues.

As a non-partisan policy center, the Center will not be endorsing a specific candidate, and will be working to inform the policies of whoever is elected president. This brief guide discusses a few notable details of the presidential contenders' plans to combat global climate change. A detailed, bullet-point summary of the candidates' policies is contained in the appendix.

Alternatively, you can jump directly to specific portions of the guide by clicking on the corresponding links below:


GHG Cap and Trade as Primary Method of Reducing GHG Emissions

Both Sen. Obama and Sen. McCain support a mandatory, economy-wide GHG cap-and-trade program as a primary tool for reducing U.S. GHG emissions. In a cap-and-trade system, the government sets a declining annual cap on total GHG emissions, requires facilities that emit GHGs to acquire one "allowance" for each ton of their emissions, and allows the facilities to buy and sell allowances from each other or from the government (e.g., at an auction). In this way, while government establishes the environmental objective, industry, through the marketplace, decides the most cost effective way to achieve it.

Sen. McCain's proposal for a cap-and-trade program incorporates several details drawn from the cap-and-trade bills he co-authored with Sen. Joseph I. Lieberman (ID-CT) in the Senate in 2003, 2005, and 2007. Sen. Obama cosponsored the 2005 and 2007 McCain-Lieberman bills, but has taken different positions on two aspects of a cap-and-trade program: the pace of GHG reductions and the method of initially distributing GHG allowances.

As GHGs accumulate in the atmosphere, they adversely affect the climate for decades. Unfortunately, the United States' annual GHG emissions have been rising steadily – they were 14.7% higher in 2006 than they were in 1990. Sen. McCain's plan calls for limiting U.S. GHG emissions at the 2005 levels by 2012; at 1990 levels in 2020 (15% below 2005 levels); and at 22% below 1990 levels in 2030 (34% below 2005 levels).

Sen. Obama has not specified short- and mid-term goals, but materials on his campaign's web site state that he "will start reducing emissions immediately in his administration by establishing strong annual reduction targets."

In the longer term, Sen. Obama has called for an 80% reduction of U.S. GHG emissions below 1990 levels by 2050, while Sen. McCain's plan calls for a 60% reduction below 1990 levels by 2050.

Initial allowance distribution is among the most contentious elements in the design of a cap-and-trade program. While allowance distribution does not affect the environmental integrity of the program (the quantity of GHGs emitted is determined by the cap levels mentioned above), it does have several other important policy implications. Under a cap-and-trade program, there are several methods by which allowances could be initially put into the market. Among other things, allowances could be: given for free to emitting facilities or manufacturers facing higher energy costs to assist the transition to low-carbon energy sources; auctioned to raise revenue for a variety of purposes, including protecting low-income consumers from higher energy costs, aiding the transition of workers, subsidizing the development and deployment of low-carbon energy technologies, and managing the physical impacts of global climate change; or auctioned to provide revenue for the general treasury that could be used to offset tax cuts or to reduce the federal deficit, for example. Any combination of these methods may be employed.

Sen. Obama has proposed the auction of 100% of GHG emissions allowances, with an estimated $250 billion a year in auction revenues being used for a variety of purposes, including an investment of $150 billion over 10 years to develop and deploy lower-emission energy supplies and create new jobs. Sen. McCain has been less specific on the subject of initial allowance distribution. His campaign's website states that his program would eventually auction allowances, and would "work to maximize the amount of allowances that are auctioned by 2050." Similarly, the McCain-Lieberman bills would require the U.S. Environmental Protection Agency to determine how best to distribute allowances.



Complementary Policies to Slow or Reduce GHG Emissions

Cap-and-trade is essential to reducing U.S. GHG emissions, but by itself cap and trade will not be sufficient to bring domestic and international emissions down to safe levels. Transportation policies, building codes, energy efficiency, and low-carbon energy generation are just a few of the areas that will need to be part of a successful comprehensive climate change policy.

Sen. McCain strongly favors dramatically expanded nuclear power generation. He has called for 45 new nuclear reactors by 2030 and for 100 new nuclear plants in the long term. Sen. Obama is open to increasing nuclear generation, saying, "it is unlikely that we can meet our aggressive climate goals if we eliminate nuclear power as an option," but "before an expansion of nuclear power is considered, key issues must be addressed including: security of nuclear fuel and waste, waste storage, and proliferation."

Both candidates support research, development and deployment (RD&D) of carbon capture and sequestration (CCS) technology for coal-fired power plants. CCS is also sometimes referred to as "clean coal technology." Sen. McCain has called for $2 billion per year for CCS RD&D, while Sen. Obama would direct the Department of Energy to enter into public-private partnerships to develop five commercial-scale coal?fired plants with CCS.

The candidates disagree over a renewable portfolio standard (RPS) (also called a renewable energy standard [RES]), which would set a federal mandate for the percentage of electricity consumed in the U.S. that must come from renewable sources. Sen. Obama favors an RPS of 10% of all consumed energy by 2012. Sen. McCain opposes such a mandate, supporting instead tax incentives to encourage renewable energy production.

Both candidates have made recommendations that could reduce GHG emissions from the transportation sector. Sen. McCain would establish a "Clean Car Challenge," a tax credit of $5,000 for every consumer who buys a zero-carbon emission car; McCain would also establish a $300 million prize for the development of advanced battery technology for plug-in hybrid and fully electric automobiles. Sen. Obama proposes a $7,000 tax credit for the purchase of advanced technology vehicles, and has set a goal of 1 million plug-in electric vehicles on the road by 2015. Both candidates support expanded production of flexible fuel vehicles (FFVs) ¬¬– American automakers are already committed to make 50% of their cars FFVs by 2012, and Sen. Obama pledges to make 100% of all new cars are FFVs by 2012, while Sen. McCain "calls on automakers to make a more rapid and complete switch to FFVs."

Changing the vehicles we drive is one important way to reduce GHG emissions from transportation, but addressing the emissions from transportation fuels themselves is also critical. To that end, Sen. Obama would establish a national Low Carbon Fuel Standard (LCFS), which would, starting in 2010, require fuel suppliers to reduce the carbon content of their fuel by 5% by 2015, and by 10% by 2020. Sen. Obama would also increase fuel economy standards by 4% a year. Sen. McCain would "effectively enforce" existing fuel economy standards, and would eliminate mandates, subsidies, tariffs and price supports that focus only on corn-based ethanol, which would "level the playing field for all alcohol-based fuels," including cellulosic ethanol.

Both candidates recognize that improving energy efficiency across the economy can be a powerful tool for reducing GHG emissions. Sen. McCain would apply higher efficiency standards to new or retrofitted buildings leased or purchased by the Federal government, which is currently the largest energy consumer in the world, and occupies 3.3 billion square feet of space worldwide. Sen. McCain would also promote investment to upgrade the national electricity grid, and supports deploying smart metering technology. Sen. Obama would set a national electricity efficiency goal of reducing demand by 15% from DOE's projected 2020 levels. Sen. Obama would also set a goal of making all new buildings carbon-neutral or zero-emission by 2030, and set a national goal of improving new building efficiency by 50% and existing building efficiency by 25% over the next decade. Like Sen. McCain, Sen. Obama pledges to reduce Federal energy consumption, improving energy efficiency in all new Federal buildings by 40% within 5 years, and ensuring that all new Federal building are zero-emitting by 2025. Sen. Obama also pledges to invest in a smart grid, and to incentivize states to adopt regulations allowing utilities to decouple profits from increased energy usage.



International Climate Agreements

The United Nations Framework Convention on Climate Change (UNFCCC) process is actively moving towards a new international climate change agreement, with an ambitious target completion date of December 2009. Both candidates have expressed their intent to actively engage in these negotiations, and their approach to international climate policy is profoundly different from the current administration.

Both candidates have also expressed their intent to provide incentives for developing countries to reduce their GHG emissions. Sen. Obama would create a technology transfer program within the Department of Energy to transfer lower-polluting American energy technology to the developing world to fight climate change; Sen. McCain would establish "government incentives and partnerships for sales of clean tech to developing countries."

Regarding major emerging economies, such as China and India in particular, Sen. McCain would "provide incentives for rapid participation by India and China, while negotiating an agreement with each," while Sen. Obama would "cooperate with China and India to reduce demand for oil," and in general "ensure the U.S. works with developing countries on climate change," including "confronting deforestation and promoting carbon sequestration."

In addition, Sen. Obama "would create a Global Energy Forum – based on the G8+5, which include all G-8 members plus Brazil, China, India, Mexico and South Africa – of the world's largest emitters to focus exclusively on global energy and environmental issues." McCain has not publicly proposed an additional international process.

Additional Resources:



EPA Regulations for CO2

Updated on October 31, 2008

The Supreme Court, in the 2007 case Massachusetts v. E.P.A., ruled that the government has the authority to regulate greenhouse gas (GHG) emissions under the current Clean Air Act, overruling the Bush Administration argument that it did not have such authority. Despite the ruling, the Administration has declined to regulate GHGs, and maintains that the Clean Air Act is too unwieldy an instrument to use for GHG regulation.

The campaigns of both Sen. Obama and Sen. McCain have said their candidate prefers reducing GHG emissions through Congressional legislation than through the Clean Air Act's regulatory mechanisms. But in the absence of such Congressional action, top advisers to both McCain and Obama have said their candidate would comply with a 2007 Supreme Court ruling that allows the EPA to regulate carbon dioxide (CO2) and other GHGs.

"The EPA is obligated to move forward in the absence of Congressional action," Jason Grumet, Sen. Obama's energy advisor said. "If there's no action by Congress in those 18 months, I think any responsible president would want to have the regulatory approach." [Bloomberg, October 16]

Sen. Obama would, "initiate those rulemakings," Grumet said. "He's not going to insert political judgments to interrupt the recommendations of the scientific efforts."

Obama campaign officials have since said Grumet was explaining that producing complex government regulations generally takes about 18 months. [E&ENews PM, October 29]

Similarly, top McCain adviser Douglas Holtz-Eakin said McCain, if elected, would comply with the Supreme Court ruling on GHGs. [E&ENews PM, October 29]

However, two McCain advisers' have expressed the candidate's preference for regulating the gas through Congressional legislation—former Central Intelligence Agency director and current McCain adviser James Woolsey said on October 6 that new rules may conflict with Congressional efforts, while policy adviser Rebecca Jensen Tallent said in August that McCain prefers a bill debated by Congress rather than regulations "established through one agency where one secretary is getting to make a lot of decisions." [Bloomberg, October 16]



On the Campaign Trail

Sen. John McCain:

"We must use all resources and develop all technologies necessary to rescue our economy from the damage caused by rising oil prices and restore the health of our planet." – Speech accepting the Republican nomination for President, Sep. 5, 2008.

"We now know that fossil fuel emissions, by retaining heat within the atmosphere, threaten disastrous changes in climate. No challenge of energy is to be taken lightly, and least of all the need to avoid the consequences of global warming.

"Over time, we must shift our entire energy economy toward a sustainable mix of new and cleaner power sources. This will include some we use already, such as wind, solar, biofuels, and other sources yet to be invented. It will include a variety of new automotive and fuel technologies, clean-burning coal and nuclear energy, and a new system of incentives, under a cap-and-trade policy, to put the power of the market on the side of environmental protection. To make the great turn away from carbon-emitting fuels, we will need all the inventive genius of which America is capable. We will need as well an economy strong enough to support our nation's great shift toward clean energy.

"Global warming presents a test of foresight, of political courage, and of the unselfish concern that one generation owes to the next. We need to think straight about the dangers ahead, and meet the problem with all the resources of human ingenuity at our disposal. We Americans like to say that there is no problem we can't solve, however complicated, and no obstacle we cannot overcome if we meet it together. I believe this about our country. And now it is time for us to show those qualities once again." – Speech to the Clinton Global Initiative, Sep. 25, 2008.

"… [President Bush] and I have not seen eye to eye on many issues. We've disagreed over energy policy and climate change …" – June 3, 2008.

"We have many advantages in the fight against global warming, but time is not one of them. Instead of idly debating the precise extent of global warming, or the precise timeline of global warming, we need to deal with the central facts of rising temperatures, rising waters, and all the endless troubles that global warming will bring. We stand warned by serious and credible scientists across the world that time is short and the dangers are great. The most relevant question now is whether our own government is equal to the challenge.

"There are vital measures we can take in the short term, even as we focus on long-term policies to mitigate the effects of global warming … Each one of the consequences of climate change will require policies to protect our citizens, especially those most vulnerable to violent weather. Each one will require new precautions in the repair and construction our roads, bridges, railways, seawalls and other infrastructure. Some state and local governments have already begun their planning and preparation for extreme events and other impacts of climate change. The federal government can help them in many ways, above all by coordinating their efforts, and I am committed to providing that support.

"To lead in this effort, however, our government must strike at the source of the problem ¬– with reforms that only Congress can enact and the president can sign. We know that greenhouse gases are heavily implicated as a cause of climate change. And we know that among all greenhouse gases, the worst by far is the carbon-dioxide that results from fossil-fuel combustion. Yet for all the good work of entrepreneurs and inventors in finding cleaner and better technologies, the fundamental incentives of the market are still on the side of carbon-based energy. This has to change before we can make the decisive shift away from fossil fuels.

"For the market to do more, government must do more by opening new paths of invention and ingenuity. And we must do this in a way that gives American businesses new incentives and new rewards to seek, instead of just giving them new taxes to pay and new orders to follow. The most direct way to achieve this is through a system that sets clear limits on all greenhouse gases, while also allowing the sale of rights to excess emissions. And this is the proposal I will submit to the Congress if I am elected president ¬– a cap-and-trade system to change the dynamic of our energy economy." – June 25, 2008.



Sen. Barack Obama:

"I will build new partnerships to defeat the threats of the 21st century: terrorism and nuclear proliferation; poverty and genocide; climate change and disease." – Speech accepting the Democratic nomination for President, Aug. 28, 2008.

"No single issue sits at the crossroads of as many currents as energy. Our dependence on oil and gas funds terror and tyranny; it has forced families to pay their wages at the pump; and it puts the future of our planet in peril. This is a security threat, an economic albatross, and a moral challenge of our time. The time to debate whether climate change is manmade has past – it's time, finally, for America to lead.

"The first commitment that I'll make today is setting a goal of an 80 percent reduction in greenhouse gas emissions by 2050.

"To do our part, we'll implement a cap-and-trade program so that there's a price for pollution, and resources to transform our energy economy. I've proposed an investment of $150 billion in alternative energy over ten years, which will create millions of jobs and break the cycle of our addiction to oil. We need to do more than drill. Now is the time to develop every form of alternative energy – solar, wind, and biofuels, as well as technologies that can make coal clean and nuclear power safe. We need to raise fuel economy standards, put more plug-in hybrid cars on the road, and find new ways to be energy efficient.

"Abroad, the United States must get off the sidelines. We'll reach out to the leaders of the biggest carbon emitting nations and ask them to join a new Global Energy Forum to lay the foundation for the next generation of climate protocols. We'll build an alliance of oil-importing nations, and work together to reduce our demand, and break the grip of OPEC. And as we develop clean energy, we should share technology and innovations with the nations of the world.

"This effort to confront climate change will be part of our strategy to alleviate poverty. Because we know that it is the world's poor who will feel – and who may already be feeling – the affect of a warming planet. If we fail to act, famine could displace hundreds of millions, fueling competition and conflict over basic resources like food and water."

– Speech to the Clinton Global Initiative, Sep. 25, 2008.

"As President, I will set a hard cap on all carbon emissions at a level that scientists say is necessary to curb global warming ¬– an 80% reduction by 2050. To ensure this isn't just talk, I will also commit to interim targets toward this goal in 2020, 2030, and 2040. These reductions will start immediately, and we'll continue to follow the recommendations of top scientists to ensure that our targets are strong enough to meet the challenge we face.

"In addition to this cap, all polluters will have to pay based on the amount of pollution they release into the sky. The market will set the price, but unlike the other cap-and-trade proposals that have been offered in this race, no business will be allowed to emit any greenhouses gases for free. Businesses don't own the sky, the public does, and if we want them to stop polluting it, we have to put a price on all pollution. It's time to make the cleaner way of doing business the more profitable way of doing business."

"…to combat climate change [I will] call on businesses, government, and the American people to make America 50% more energy efficient by 2030. This is by far the fastest, easiest, and cheapest way to curb our emissions and save money at the same time. Since DuPont implemented an energy efficiency program in 1990, the company has significantly reduced its pollution and cut its energy bills by $3 billion, and cities like Keene and Portland, Oregon have led in meeting new efficiency standards. There is no reason the rest of America can't do the same.

"We will start by dramatically improving the efficiency of our buildings, which currently account for nearly half of all carbon emissions in America today. When I am President, we'll set a goal of making our new buildings 50% more efficient within several years. The federal government will lead by making all of its buildings carbon neutral by 2025. And I will set a national goal of making all new buildings in America carbon neutral by 2030." – October 8, 2007.

"One of the most dangerous weapons in the world today is the price of oil...this immediate danger is eclipsed only by the long-term threat from climate change, which will lead to devastating weather patterns, terrible storms, drought, and famine. That means people competing for food and water in the next fifty years in the very places that have known horrific violence in the last fifty: Africa, the Middle East, and South Asia. Most disastrously, that could mean destructive storms on our shores, and the disappearance of our coastline." – July 15, 2008.

"Our changing climate is placing our planet in peril." – Aug. 4, 2008.



The Vice-Presidential Candidates

Sen. Joseph R. Biden, Jr. (D-DE):

Sen. Biden is a long-time supporter of climate action, having voted for the 2003 and 2005 McCain-Lieberman bills, and having strongly advocated for U.S. engagement in international climate change treaty negotiations. In 2003 and 2005 with Senator John F. Kerry (D-MA), and in 2005 and 2007 with Sen. Richard Lugar (R-IN), he cosponsored a nonbinding resolution calling for U.S. participation in international climate change negotiations. Sen. McCain voted for this resolution in 2005.

Sen. Biden also cosponsored, with Senators Lugar and Hagel (R-NE), legislation which would authorize $2 billion for the Clean Technology Fund, an initiative of President George W. Bush, which would be administered by the World Bank to promote lower- and zero-carbon energy production projects in the developing world.


Gov. Sarah Palin (R-AK):

While Gov. Palin has taken state and regional action on climate change ¬– such as establishing a special Climate Change Sub-Cabinet, and making Alaska an observer of the Western Climate Initiative (in which seven other U.S. states and four Canadian provinces are developing a mandatory cap-and-trade program to reduce the region's greenhouse gas emissions) ¬– she has also expressed skepticism about the extent to which human activities are contributing to global climate change and associated impacts. Alaska has not as yet adopted any measures to reduce its GHG emissions.

In December 2007, she told the Fairbanks Daily News-Miner, "I'm not an Al Gore, doom-and-gloom environmentalist blaming the changes in our climate on human activity. But I'm not going to put my head in the sand and pretend there aren't changes."

In a January 5, 2008, op-ed in The New York Times Palin treads this line. She argued against listing polar bears as an endangered species because of threats to their habitats caused by global climate change, writing "the possible listing of a healthy species like the polar bear would be based on uncertain modeling of possible effects. This is simply not justified."

In August 2008, before Sen. McCain selected her as his running mate, she told Newsmax.com "A changing environment will affect Alaska more than any other state, because of our location. I'm not one though who would attribute it to being man-made."

On September 3, in her first interview as the Vice-Presidential nominee, however, she told ABC News, "I believe that man's activities certainly can be contributing to the issue of global warming, climate change."

A September 30, 2008, interview for CBS News with Katie Couric featured an extensive exchange on climate change and cap and trade:

Couric: If [climate change] is not man-made, then one might wonder, well, how can human beings contribute to a solution?

Gov. Palin: Well, human beings certainly are contributing to pollution today. And to some adverse effects on the environment. And it's all of our jobs to do to clean things up. And that's what we're committed to doing."

Couric: So you do believe … that man is contributing to global warming, because you just said they're causing pollution. Of course, pollution causes global warming.

Gov. Palin: I believe that there are a lot of causes. And there is one effect. And one is changes in the climate. And there are things that we can do to make sure we're cleaning up the environment. I also formed an integrity office that solely is focused on petroleum, on pipelines, on those things that we do up there in Alaska to contribute to the U.S. domestic supply of energy.

Where we can focus solely on environmental protections. There are a lot of things that I've done there in that arena of environmental protection that have kind of ticked off some in my own party thinking that I went too far. But I've always been of the mind that, you know, we gotta prove that we can do this right. Safely, ethically, environmentally friendly developments, or we're not gonna be allowed to unlock our lands and tap these supplies.

Couric: John McCain proposed legislation calling for mandatory caps on global warming gases or CO2 emissions. Do you agree with that?

Gov. Palin: I support his position on that. Absolutely.

Couric: But he somewhat backtracked on the campaign trail saying it wouldn't, they wouldn't, the caps wouldn't be mandatory, they'd be voluntary. So what do you think? Do you think voluntary caps go far enough? Or they should be mandatory?

Gov. Palin: He's got a good cap and trade policy that he supports. And details are being hashed out even right now. But, in principle, absolutely, I support all that we can do to reduce emissions and to clean up this planet. And john McCain is right on board with that.

Couric: Voluntary or mandatory in your view?

Gov. Palin: We're gonna keep working on how it can be implemented to actually make sense and make a difference.



The Party Platforms

The Republican Party:

"As part of a global climate change strategy, Republicans support technology-driven, market-based solutions that will decrease emissions, reduce excess greenhouse gases in the atmosphere, increase energy efficiency, mitigate the impact of climate change where it occurs, and maximize any ancillary benefits climate change might offer for the economy.... Republicans caution against the doomsday climate change scenarios peddled by the aficionados of centralized command-and-control government.... [W]e will insist on reasonable policies that do not force Americans to sacrifice their way of life or trim their hope and dreams for their children. This perspective serves not only the people of the United States but also the world's poorest peoples, who would suffer terribly if climate change is severe – just as they would if the world economy itself were to be crippled. We must not allow either outcome."

Click here to read the complete Republican Party platform. The Environmental Protection section on page 35 discusses climate change.


The Democratic Party:

"We will help pay for [clean energy programs] by dedicating a portion of the revenues generated by an economy-wide cap-and-trade program – a step that will also dramatically reduce our greenhouse gas emissions and jumpstart billions in private capital investment in a new energy economy."

Click here to read the complete Democratic Party platform. The Protecting our Security and Saving our Planet section on page 42 discusses climate change.



Appendix: Candidates' Climate- and Energy-Related Policy Positions

Sen. Barack Obama

Candidate's website

  • "Global warming is real, is happening now and is the result of human activities."
  • Implement an economy-wide cap-and-trade program to reduce greenhouse gas emissions 80% below 1990 levels by 2050.
  • Invest $150 billion over the next ten years to develop and deploy climate-friendly energy supplies, protect our existing manufacturing base, and create millions of new jobs.
  • Improve energy efficiency to reduce the energy intensity of our economy by 50 percent by 2030.
  • Reduce our dependence on foreign oil and reduce oil consumption overall by at least 35 percent, or 10 million barrels of oil, by 2030.
  • Make the U.S. a leader in the global effort to combat climate change by leading a new international global warming partnership.

Climate policy positions:

  • Cap-and-trade with 100% auction.
  • Invest revenue for a clean energy future.
    • Invest in basic research.
    • Invest in a skilled clean technologies workforce. This includes a youth jobs program to invest in disconnected and disadvantaged youth.
    • Invest in energy efficiency improvements and address transition costs, including helping American workers affected by this economic transition and helping lower-income Americans afford their energy bills by expanding the Low Income Home Energy Assistance Program, expanding weatherization grants for low-income individuals to make their homes more energy efficient, and establishing a dedicated fund to assist low-income Americans afford higher electricity and energy bills
    • Develop next generation of biofuels.
    • Expand locally-owned biofuel refineries.
    • Develop and deploy clean coal technology. "Obama will use whatever policy tools are necessary, including standards that ban new traditional coal facilities, to ensure that we move quickly to commercialize and deploy low carbon coal technology."
    • Safe and secure nuclear energy: "Four key issues: public right-to-know, security of nuclear fuel and waste, waste storage, and proliferation."
    • Establish a national Low Carbon Fuel Standard.
    • Clean Technologies Deployment Venture Capital. To be "modeled on the Central Intelligence Agency In-Q-Tel program. In-Q-Tel is a non-profit, independently-managed venture capital fund led by seasoned venture capital professionals to develop new intelligence technologies for the CIA. The first five years of In-Q-Tel funding led to 22 new technologies being used in 40 government programs."
    • Extend federal Production Tax Credit for renewable energy for five years.
    • Convert manufacturing centers into clean technology leaders.
  • 25% renewable electricity standard by 2025.
  • 30% renewable electricity standard for the Federal government by 2020.
  • Improve building efficiency.
  • Expand federal efficiency grants.
  • Phase out incandescent light bulbs.
  • Invest in smart grid.

International positions:

  • Re-engage with UNFCCC.
  • Create new forum of largest GHG emitters: "Barack Obama will take seriously the U.S.'s leadership role in combating climate change. Obama will signal to the world the U.S. commitment to climate change leadership by implementing an aggressive domestic cap-and-trade program coupled with increased investments in clean energy development and deployment. Obama will build on our domestic commitments by creating a negotiating process that involves a smaller number of countries than the nearly 200 countries in the current Kyoto system. Obama will create a Global Energy Forum – based on the G8+5, which includes all G-8 members plus Brazil, China, India, Mexico and South Africa – of the world's largest emitters to focus exclusively on global energy and environmental issues."
  • Transfer American technology to the developing world to fight climate change: "Obama will create a Technology Transfer program within DOE."
  • Cooperate with oil importers (China, India) to reduce demand.
  • Ensure the U.S. works with developing countries on climate change.
  • Confront deforestation and promote carbon sequestration.


Sen. John McCain

Candidate's website

Sen. John McCain's Cap and Trade Policy:

  • Greenhouse Gas Emission Targets And Timetables:
    • 2005 levels in 2012 (18% above 1990 levels)
    • 1990 levels in 2020 (15% below 2005 levels)
    • 22% below 1990 levels in 2030 (34% below 2005 levels)
    • 60% below 1990 levels in 2050 (66% below 2005 levels)
  • Coverage:
    • Electric power, transportation fuels, commercial businesses, and industrial businesses.
    • Just below 90% of all emissions. Small businesses would be exempt. Initially, participants would be allowed to either make their own GHG reductions or purchase "offsets" – financial instruments representing a reduction, avoidance, or sequestration of greenhouse gas emissions practiced by other activities, such as agriculture – to cover 100 percent of their required reductions. Offsets would only be available through a program dedicated to ensure that all offset GHG emission reductions are real, measured and verifiable. The fraction of GHG emission reductions permitted via offsets would decline over time.
  • Allocation and Auction:
    • "Emissions permits will eventually be auctioned to support the development of advanced technologies. A portion of the proceeds of these auctions will be used to support a diversified portfolio of research and commercialization challenges, ranging from carbon capture and sequestration, to nuclear power, to battery development. Funds will also be used to provide financial backing for a Green Innovation Financing and Transfer (GIFT) to facilitate commercialization."
    • "A portion of auction proceeds" will also go to "reduce impacts on low-income American families."
    • "Early allocation of some emission permits on sound principles. This will provide a significant amount of allowances for auctioning to provide funding for transition assistance for consumers and industry. It will also directly allocate sufficient permits to enable the activities of a Climate Change Credit Corporation, the public-private agency that will oversee the cap and trade program, provide credit to entities for reductions made before 2012, and ease transition for industry with competitiveness concerns and fewer efficiency technology options."
    • "A commission will also be convened to provide recommendations on the percentage of allowances to be provided for free and the percentage of allowances to be auctioned, and develop a schedule for transition from allocated to maximum auctioned allowances. Cap-and-trade system will also work to maximize the amount of allowances that are auctioned off by 2050."
  • Cost-containment:
    • Full banking and borrowing.
    • Initially, firms will be able to use domestic and international offsets for 100% of their compliance obligation.
    • Trading will be integrated with other international markets.
    • A Strategic Carbon Reserve will be established as a national source of permits "during periods of economic duress."
  • International:
    • "John McCain will engage the international community in a coordinated effort by:
      • Actively engaging to lead United Nations negotiations;
      • Permitting America to lead in innovation, capture the market on low-carbon energy production, and export to developing countries – including government incentives and partnerships for sales of clean tech to developing countries;
      • Provide incentives for rapid participation by India and China, while negotiating an agreement with each."
  • Adaptation:
    • "John McCain will develop a climate change adaptation plan.
    • A comprehensive approach to addressing climate change includes adaptation as well as mitigation.
    • An adaptation plan should be based upon national and regional scientific assessments of the impacts of climate change.
    • An adaptation plan should focus on implementation at the local level which is where impacts will manifest themselves.
    • A comprehensive plan will address the full range of issues: infrastructure, ecosystems, resource planning, and emergency preparation."

The Lexington Project for Energy Independence

  • 45 new nuclear reactors by 2030.
  • Long-term goal of 100 new nuclear plants.
  • $2 billion/year to clean coal RD&D.
  • Clean Car Challenge to automakers: The first zero-emission car will earn $5,000 tax credit for each customer. For other vehicles, the lower the carbon emissions, the higher the tax credit.
  • Goal of a "swift conversion of American vehicles away from oil."
  • $300 million prize for advanced vehicle battery technology.
  • Renewables to be incentivized through cap-and-trade program.



Press Release: Offset Quality Initiative Releases White Paper


News Release: For Immediate Release — July 28, 2008

Alexia Kelly, The Climate Trust, 541-514-3633
Tom Steinfeldt, Pew Center on Global Climate Change, 703-516-4146


Group Receives Major Grant from the Energy Foundation

PORTLAND and WASHINGTON, D.C. — The Offset Quality Initiative (OQI) will release a white paper today in San Diego at a briefing to be held before the opening of the Western Climate Initiative stakeholder meeting. Titled “Ensuring Offset Quality: Integrating High Quality Greenhouse Gas Offsets Into Cap-and-Trade Policy,” the document offers policymakers practical recommendations regarding the integration of greenhouse gas offsets into emerging regulatory systems at the state, regional and federal levels. OQI, a coalition of six leading non-profit organizations—The Climate Trust, Pew Center on Global Climate Change, California Climate Action Registry, Environmental Resources Trust, Greenhouse Gas Management Institute, and The Climate Group—was founded in November 2007 to provide leadership on GHG offset policy and best practices. 

“The availability of high-quality offsets is key to containing the cost of climate policy while delivering real greenhouse gas emission reductions,” said Eileen Claussen, President of the Pew Center on Global Climate Change. “A rigorous and adaptable offset program design can ensure that offsets play a valuable role in an effective cap-and-trade system. OQI’s work will assist policymakers seeking to develop core components of a credible offsets program.”

In addition to regulatory design guidelines, the white paper addresses the key criteria for offset quality and discusses offset project types most appropriate for inclusion in emerging regulatory systems. OQI member organizations will discuss their recommendations with policymakers and other stakeholders over the next several weeks, beginning with today’s briefing in San Diego.

“Establishing confidence in the environmental integrity of offsets is critical for the successful launch and acceptance of future cap and trade regulatory systems.  The goal of our paper is to provide policymakers with well-conceived and comprehensive recommendations for offset program design based on the collective knowledge and experience of the OQI members.  Each nonprofit member of the coalition is a well-respected and established organization in climate change and brings valuable experience and knowledge to the group,” said Gary Gero, President of the California Climate Action Registry.

OQI recently received a one-year grant of $235,000 from the Energy Foundation to support its work. “We were excited and honored to receive the grant,” said Mike Burnett, Executive Director of The Climate Trust, which was awarded the grant on behalf of OQI. “This generous support from the Energy Foundation highlights the need for the unique work and perspective of OQI. We will use the funds to continue to advance sound greenhouse gas offset policy.”

For a copy of the white paper or for more information on the briefing, please visit www.offsetqualityinitiative.org.


About the Offset Quality Initiative
The Offset Quality Initiative (OQI) was founded in November 2007 to provide leadership on greenhouse gas offset policy and best practices. OQI is a collaborative, consensus-based effort that brings together the collective expertise of its six nonprofit member organizations: The Climate Trust, Pew Center on Global Climate Change, California Climate Action Registry, the Environmental Resources Trust, Greenhouse Gas Management Institute, and The Climate Group.

The four primary objectives of the Offset Quality Initiative are:

  • To provide leadership, education, and expert analysis on the issues and challenges related to the design and use of offsets in climate change policy.
  • To identify, articulate, and promote key principles that ensure the quality of greenhouse gas emission offsets.
  • To advance the integration of those principles in emerging climate change policies at the state, regional, and federal levels.
  • To serve as a source of credible information on greenhouse gas offsets, leveraging the diverse collective knowledge and experience of OQI members.

White Paper: Ensuring Offset Quality

Ensuring Offset Quality: Integrating High Quality Greenhouse Gas Offsets Into North American Cap-and-Trade Policy
An Offset Quality Initiative White Paper
July 2008

Download full paper (pdf)

Download executive summary (pdf)

Read press release

This paper aims to provide policymakers with practical recommendations regarding the integration of greenhouse gas (GHG) offsets into emerging regulatory systems. Offsets have an important role to play in controlling the costs associated with regulating and reducing GHGs, and in driving technology transformation in sectors not mandated to reduce their GHG emissions. In order for offsets to deliver on their intended purpose — the achievement of a real and verifiable reduction in global GHG emission levels beyond what would have otherwise occurred —regulatory programs must be designed to ensure the quality and effectiveness of offsets used to meet GHG reduction requirements. Policymakers must also have a clear understanding of both the opportunities and challenges presented by the integration of offsets into GHG emission-reduction systems.

This document represents the consensus of the member organizations of the Offset Quality Initiative: The Climate Trust, Pew Center on Global Climate Change, California Climate Action Registry, Environmental Resources Trust, Greenhouse Gas Management Institute and The Climate Group. The GHG mitigation field is evolving at a rapid pace and will continue to do so over the next several years; this document will be updated over time to reflect any changes in the Offset Quality Initiative’s consensus positions.

The work of the Offset Quality Initiative is generously supported by the Energy Foundation.


Press Release: New Paper Examines Key Federal and State Roles in U.S. Climate Policy

Press Release
June 27, 2008

Contact: Tom Steinfeldt, (703) 516-4146 

Shared Responsibilities Can Help Meet Climate Challenge

WASHINGTON, D.C. – Of the myriad challenges facing policymakers as they seek to take action on climate change, determining the appropriate respective roles of federal and state governments within comprehensive national legislation is one of the most difficult. In the absence of federal leadership, states are fulfilling their key functions as policy innovators and drivers of new ideas. From their participation in regional greenhouse gas reduction efforts to the implementation of low-carbon energy standards, states are taking action to curb emissions and mitigate the impacts of climate change.

While state action is an important component of climate policy, achieving the significant emissions reductions needed to tackle climate change requires comprehensive national action. A new paper released by the Pew Center on Global Climate Change explores this challenge by examining how to best delineate federal and state government roles in crafting a new national climate change policy.

“Toward a Constructive Dialogue on Federal and State Roles in U.S. Climate Change Policy” delivers critical insights into national climate policy approaches that seek to balance federal and state responsibilities. The paper, authored by Franz T. Litz of the World Resources Institute, explores a range of policy options from heavy reliance on federal action to state-dominated policy prescriptions. While political decisions will greatly influence any eventual national climate plan, this paper explains that a well-designed policy will leverage the strengths of each level of government.   

“In order to reduce emissions cost-effectively and to the levels scientists say are necessary, we need the federal government to step up to the plate at the same time the states are doing their part,” said Eileen Claussen, President of the Pew Center on Global Climate Change. “As this paper makes clear, a strong U.S. climate policy will take advantage of the things states do well – such as building efficiency codes and smart growth – and let Washington do things that only Washington can do, such as developing a national cap-and-trade system and negotiating with other countries. There are many ways for states to play a role in the cap-and-trade program, and the national legislation should explicitly address this. I think there is more than enough responsibility and hard work to go around.”

The paper examines shared authority between federal and state governments while providing relevant context for determining appropriate roles. Key sections of the paper include:

  • An historical overview of state and federal actions and shared authority on environmental issues;
  • A summary of federal preemption in the United States;
  • The federal-state partnership under the Clean Air Act; and
  • The benefits and challenges in possible policy approaches.

This paper was first presented in draft form at the Pew Center’s workshop on Innovative Approaches to Climate Change, held in February 2008. The event brought together legislative staff and officials from state and federal governments to share their experience developing climate policies, and to discuss the appropriate roles of each level of government in implementing future national policy. Participants explored how federal policy might be informed by, and interact with, existing state efforts.

For more information about global climate change and the activities of the Pew Center, visit www.c2es.org.


The Pew Center was established in May 1998 as a non-profit, non-partisan, and independent organization dedicated to providing credible information, straight answers, and innovative solutions in the effort to address global climate change. The Pew Center is led by Eileen Claussen, the former U.S. Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs.


The Earth’s climate is rapidly changing. In the United States and other nations, people are seeing how the impacts of rising global temperatures affect their communities, their livelihoods, and the natural environment. Substantially reducing greenhouse gas emissions is essential to avoiding the worst impacts of climate change. But mitigation alone is not enough. Even with emission reductions, some warming will still occur. Adaptation planning at the local, state, and national levels can limit the damage caused by climate change, as well as the long-term costs of responding to climate-related impacts that are expected to grow in number and intensity in the decades to come.

To learn more about adaptation, read Climate Change 101: Adaptation and check out the additional resources below. 

U.S. Federal Adaptation Resources:

U.S. States & Regions Adaptation Resources:

Markets & Business Adaptation Resources:

International Adaptation Resources:

Statement: Senate Vote Supporting Mandatory Climate Action

Statement of Eileen Claussen, President
Pew Center on Global Climate Change

June 6, 2008

The vote, while only procedural, shows growing support in the Senate for mandatory climate action and, in particular, GHG cap and trade. Forty-eight Senators voted in favor, including several who had not previously supported climate action. Six more who were absent said they would have voted yes if present ­- including the presumptive Democratic and Republican presidential nominees.

This week's debate showed that the terms of debate have shifted. Apart from a couple of remaining skeptics, there was no challenge to the broad scientific consensus on climate change. The Senate is now debating the best means ­- and the cost ­­- of reducing emissions. These are extraordinarily complex issues and it will take many more hours of debate before Congress works through them. But this is the right debate and it's now well under way.


Click here to read our June 6 summary putting the Senate vote in context.

Distribution of Allowances in S. 3036 Boxer-Lieberman-Warner Substitute Amendment

Graphical Illustrations Depicting the Distribution of Allowances in the Bill
June 3, 2008

Click here to view the figures. (pdf)

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