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The scientific, economic, and political questions surrounding climate change have long been with
us. This report focuses instead on a relative newcomer: the legal debate. Though the first court
decision related to climate change appeared 19 years ago, such litigation has proliferated in just
the past six. Representatives of some suing organizations and states acknowledge that a prime
cause for this litigation surge was inaction by Congress and the executive branch during the
George W. Bush Administration with regard to mandatory constraints on greenhouse gas (GHG)
emissions.
The court cases, decided and pending, arise in eight contexts. The first is the Clean Air Act
(CAA). In Massachusetts v. EPA, the Supreme Court held that as to mobile sources of emissions
(cars, trucks), EPA has authority under the act to regulate greenhouse gas (GHG) emissions. This
decision puts pressure on EPA to move forward as well with regulation of GHGs from stationary
sources (power plants, factories).
Second, litigation under wildlife statutes, particularly the Endangered Species Act, raises the
possibility that the impacts of climate change on wildlife may constrain private activities that emit
GHGs.
Third, energy statutes have been invoked. It has been held, for example, that under the Energy
Policy and Conservation Act, the United States must monetize the benefits of reduced carbon
emissions as part of setting light-truck fuel economy standards.
Fourth, various statutes requiring federal government analysis and information dissemination—
the National Environmental Policy Act (NEPA), Global Change Research Act, and Freedom of
Information Act—have generated climate-change litigation. NEPA suits make up the most
numerous subset of this category. Courts agree that if a plaintiff can establish standing, NEPA can
be used to compel agency consideration of the climate change effects of its actions.
Fifth, common law tort theories such as nuisance have been invoked, not yet successfully, to force
cutbacks in GHG emissions, or payment of damages. Several cases are on appeal.
Sixth are the preemption suits. These challenge state regulation of GHG emissions from motor
vehicles as preempted by the federal corporate average fuel economy standards or federal
authority over foreign policy. The two rulings thus far have rejected these challenges, but are on
appeal. California’s suit attacking EPA’s denial of its request for a waiver of federal preemption
under the Clean Air Act has now been stayed, pending EPA reconsideration of the denial.
Seventh, chiefly with respect to coal-fired power plants, are suits under state utilities laws.
And eighth, one case asks whether existing general liability insurance policies cover climate-
change-related liability.
Finally, the report discusses international law aspects of a nation’s contributions to climate
change, and offers some overview comments.
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Introduction ..................................................................................................................................... 1
I. Clean Air Act................................................................................................................................ 2
Stationary Sources of GHG Emissions ..................................................................................... 2
The First EPA General Counsel Memorandum................................................................... 2
Suits Seeking General CAA Rulemaking by EPA .............................................................. 3
Suits and Administrative Petitions Enforcing the CAA Against Specific Stationary
Sources............................................................................................................................. 5
Mobile Sources of GHG Emissions .......................................................................................... 7
The Section 202 Petition Denial and the Second EPA General Counsel
Memorandum................................................................................................................... 7
Massachusetts v. EPA: The Challenge to EPA’s Petition Denial ......................................... 7
II. Wildlife Statutes........................................................................................................................ 12
Marine Mammal Protection Act.............................................................................................. 12
Endangered Species Act .......................................................................................................... 12
III. Energy Statutes ........................................................................................................................ 16
Energy Policy and Conservation Act ...................................................................................... 16
Outer Continental Shelf Lands Act ......................................................................................... 16
IV. Information Statutes................................................................................................................. 17
National Environmental Policy Act......................................................................................... 17
District of Columbia Circuit ............................................................................................. 17
Ninth Circuit ..................................................................................................................... 19
Eighth Circuit.................................................................................................................... 21
State NEPAs...................................................................................................................... 21
Global Change Research Act................................................................................................... 22
Freedom of Information Act.................................................................................................... 22
V. Common Law Tort .................................................................................................................... 23
Nuisance.................................................................................................................................. 24
Negligence, etc........................................................................................................................ 26
VI. Federal Preemption ................................................................................................................. 27
Stationary Sources of GHG Emissions ................................................................................... 27
Mobile Sources of GHG Emissions: CAA Preemption........................................................... 27
Mobile Sources of GHG Emissions: Non-CAA Preemption .................................................. 28
VII. State Statutes .......................................................................................................................... 30
VIII. Insurance Policy Litigation................................................................................................... 31
IX. International Law .................................................................................................................... 31
X. Comments................................................................................................................................. 34
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Author Contact Information .......................................................................................................... 37
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The scientific, economic, and political questions surrounding climate change have long been with
us. This report focuses instead on a relative newcomer: the legal debate. Though the first court
decision related to climate change appeared 19 years ago, the quantity of such litigation has
mushroomed in recent years. One observer counts 118 lawsuits and petitions for government
action filed on climate change issues through the end of 2008—41 lawsuits filed in 2007 alone.1
Representatives of some suing organizations and states acknowledge that a prime cause for this
litigation surge was inaction by Congress and the executive branch during the George W. Bush
Administration with regard to mandatory constraints on greenhouse gas (GHG) emissions, and
their perception that litigation might help to prompt such action.
The principal court cases, decided and pending, arise in eight contexts—a number that continues
to grow. First and most important is the Clean Air Act (CAA). In April, 2007, the Supreme Court
held in Massachusetts v. EPA that EPA has authority under the CAA to regulate greenhouse gas
emissions from new motor vehicles.2
The second context for climate change litigation is the federal wildlife statutes, raising the issue
of whether statutes like the Endangered Species Act can be used to limit GHG emissions based on
their contribution to climate-climate-related alterations of wildlife habitat. Third is the federal
energy statutes, such as the Energy Policy and Conservation Act and Outer Continental Shelf
Lands Act, which also raise questions as to whether climate change impacts must be considered in
their spheres. The fourth context for litigation is federal information statutes such as the National
Environmental Policy Act, exploring the extent to which they can be used to compel government
analysis of and dissemination of information about climate change. Fifth is common law tort
theories such as nuisance and whether they be used successfully by state and private plaintiffs to
force cutbacks in GHG emissions, or payment of damages? Sixth is federal preemption of state
regulation of GHG emissions. This category breaks down into efforts by states and
environmentalists to reverse EPA’s refusal to waive Clean Air Act preemption, and auto industry
efforts to impose preemption under non-Clean Air Act theories, such as the “CAFE standards”
under the Energy Policy and Conservation Act. Seventh, chiefly with respect to coal-fired power
plants, is state utilities laws. And eighth is whether general liability insurance policies cover
harms and liabilities caused by climate change.
Sections I through VIII of this report address these eight areas of litigation in turn.3 Most known
cases, decided and pending, are mentioned—omitted cases are those that raise climate change
issues in only the most marginal way or only implicitly,4 and some state cases. Looking beyond
the domestic lawsuits, Section IX surveys international law arguments that might be used to
induce GHG emission reductions from the United States and other countries that are major GHG
emitters, and the few international law claims filed against the United States to date. Finally,
Section X offers overall comments.
1 Robert Cook, Obama Said to Be “Off to Fast Start” With Economic Stimulus Legislation, BNA Daily Env’t Rept.
(March 18, 2009).
2 549 U.S. 497 (2007).
3 Similar ground is covered by Justin R. Pidot, Global Warming in the Courts: An Overview of Current Litigation and
Common Legal Issues (Georgetown Environmental Law and Policy Institute 2006) (available, together with a March,
2007 update, at http://www.law.georgetown.edu/gelpi/), and Todd O. Madden and Eric McLaughlin, Climate Change
Litigation: Trends and Developments, BNA Daily Env’t Rpt. B-1 (April 3, 2007). A regularly updated chart of climate
(continued...)
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Aware that prospects for Senate approval of the Kyoto Protocol were dubious,5 some Members of
Congress became concerned in the late 1990s that the Clinton Administration EPA might seek to
regulate GHG emissions in the absence of approval, under either of two claimed authorities. One
authority would derive from an argument that even prior to ratification, the Protocol provided
some sort of legal basis for emissions restrictions, perhaps citing past treaties signed by the
United States that were provisionally implemented prior to going into effect.6 This possibility
provoked a series of enactments barring EPA’s use of appropriated funds to implement the Kyoto
Protocol in the absence of approval and ratification.7
The rest of this section deals with the second claim of possible authority: regulating GHG
emissions independently of the Protocol, under the CAA. This authority has now been confirmed
by the Supreme Court, at least as to mobile sources; nonetheless, this report retains from earlier
versions the historical evolution of the issue.
In 1998, an EPA General Counsel memorandum8 concluded that CO2 satisfies the CAA definition
of “air pollutant,” but that this conclusion is only the first step. Before EPA can regulate CO2
(...continued)
change cases, prepared by Michael Gerrard, Director, Center for Climate Change Law, Columbia University, is
available at http://www.climatecasechart.com. A useful blog is the Constitutional Accountability Center’s Warming
Law: Changing the Climate in the Courts, found at http://theusconstitution.org/blog.warming/. Broader treatments of
the legal implications of climate change may be found in Michael Gerrard (ed.), GLOBAL CLIMATE CHANGE AND U.S.
LAW (ABA 2007), and at least three law-review symposium issues: Responses to Global Warming: The Law,
Economics, and Science of Climate Change, 155 U. Pa. L. Rev. 1353 (2007); Changing Climates: Adapting Law and
Policy to a Transforming World, 55 UCLA L. Rev. 1479 (2008); and Federalism and Climate Change: The Role of the
States in a Future Federal Regime, 50 Ariz. L. Rev. 673 (2008).
4 An example of a case that deals with climate change only implicitly (at least so far) is State of New York v. U.S. Dep’t
of Energy, No. 08-0311 (2d Cir. filed January 17, 2008), in which three states (NY, CN, MA) challenge the
Department’s energy conservation standards for residential furnaces and boilers. Though we are given to understand
that the climate change benefits of reducing fossil fuel consumption by such furnaces and boilers was a consideration in
filing suit, the petition for review does not mention CO2 or climate change, and thus we do not include this case in the
body of the report.
5 Kyoto Protocol to the United Nations Framework Convention on Climate Change, concluded December 10, 1997,
U.N. Doc. FCC/CP/1997/L.7 Add. 1, reprinted at 37 I.L.M. 22 (1998). One indication of Senate antipathy to the Kyoto
Protocol was its adoption by 95-0 of the so-called Byrd-Hagel resolution urging the President not to sign any
international agreement on climate change that would result in serious injury to the U.S. economy or that did not
include provisions regarding the GHG emissions of developing countries. S.Res. 98, 105th Congress (1997).
6 See generally CRS Report 98-349, Global Climate Change: Selected Legal Questions About the Kyoto Protocol, by
David M. Ackerman. This report concluded that “there does not appear to be any clear legal authority that could be
invoked to sustain the provisional application of the Kyoto Protocol.” Id. at 6.
7 P.L. 105-276, 112 Stat. at 2496 (1998) (barring EPA’s use of FY1999 funds to implement Protocol); P.L. 106-74, 113
Stat. at 1080 (1999) (same for FY2000); P.L. 106-377, 114 Stat. at 1141A-41 (2000) (same for FY2001).
8 Memorandum from Jonathan Z. Cannon, EPA General Counsel, to Carol M. Browner, EPA Administrator, EPA’s
Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (April 10, 1998).
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emissions, the memorandum went on, it must further conclude that CO2 meets criteria in other
CAA provisions requiring the agency to determine that the substance poses harm to public health,
welfare, or the environment. This next step EPA declined to take. At a House hearing in 1999,9 a
panel of legal experts argued the question of EPA’s authority to regulate CO2 under the CAA. A
new EPA General Counsel endorsed his predecessor’s analysis in the 1998 memorandum, but just
as his predecessor, stressed that the EPA’s legal analysis was “largely theoretical” since “EPA
currently has no plans to regulate carbon dioxide....”10 This hands-off position was prompted in
part by strong congressional opposition based on uncertainties as to the economic impact of
regulating a pollutant as widespread as CO2. In addition, some in Congress argued that CAA
implementation of a CO2 standard was barred by the aforementioned enactments (appropriation
riders) prohibiting implementation of the Kyoto Protocol.11
The EPA General Counsel opinion that “air pollutant” includes GHGs held sway until 2003, when
that office reversed itself in the context of a petition asking the agency to regulate GHG emissions
from mobile sources. This story picks up below (“Mobile Sources of GHG Emissions”).
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The earliest lawsuit in this category, now dismissed, sought to have EPA promulgate national
ambient air quality standards for CO2. In Massachusetts v. Whitman, filed in 2003, three
Northeast states (MA, CT, ME) sought to force EPA to list CO2 as a “criteria pollutant” under the
CAA.12 They argued that on various occasions, EPA had indicated its belief that CO2 emissions
contribute to climate change. These EPA statements constituted, in the words of CAA section
108,13 a “judgment [that GHG emissions] cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare” and “result[] from numerous or
diverse mobile or stationary sources.” These prerequisites being satisfied, the suit argued, section
108 requires EPA to add CO2 to its list of “criteria pollutants,” then proceed under section 10914 to
develop national ambient air quality standards for CO2. On September 3, 2003, a few days after
EPA’s denial of a petition asking the agency to regulate GHG emissions from motor vehicles, the
plaintiff states voluntarily dismissed this suit, reportedly so as to transfer their energies to a suit
challenging the petition denial (leading to the Supreme Court’s Massachusetts v. EPA decision).
The remaining suits in this category are all active today. Each one seeks EPA regulation of GHG
emissions through new source performance standards (NSPSs) under the CAA.15 In most of these
cases, regulation of GHGs is not the primary issue. Nonetheless, it should be noted that they will
be litigated in the shadow of the Supreme Court ruling in Massachusetts v. EPA holding that EPA
has authority under the CAA to regulate GHGs from mobile sources. The burning question is how
that ruling will affect EPA regulation of stationary-source GHG emissions.
9 Is CO2 A Pollutant and Does EPA Have the Power to Regulate It?, Joint Hearing Before the Subcomm. on National
Environmental Growth, Natural Resources and Regulatory Affairs of the House Comm. on Gov’t Reform and the
Subcomm. on Energy and Environment of the House Comm. on Science, 106th Cong. (1999).
10 Testimony of Gary Guzy, Joint Hearing, supra note 9, at 11.
11 See Veronique Bugnion and David M. Reiner, A Game of Climate Chicken: Can EPA Regulate Greenhouse Gases
Before the U.S. Senate Ratifies the Kyoto Protocol?, 30 Envtl. L. 491 (2000).
12 Civ. Action No. 3:03CV984 (PCD) (D. Conn.) (filed June 4, 2003).
13 42 U.S.C. § 7408.
14 42 U.S.C. § 7409.
15 See CAA § 111, 42 U.S.C. § 7411.
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The first NSPS suit was New York v. EPA, an effort to compel EPA to issue a NSPS for CO2 from
steam generating units. New York began with an EPA proposal to revise its NSPSs for electric
utility and other steam-generating units. Some commenters on the proposed rule argued that EPA
must, in addition to the revisions proposed, set NSPSs for GHGs emitted from steam generating
units. The commenters pointed to CAA section 111’s command that EPA promulgate NSPSs to
address emissions from new stationary sources that “cause[], or contribute[] significantly to, air
pollution which may reasonably be anticipated to endanger public health or welfare.” In
promulgating its final rule in February, 2006,16 however, EPA rejected this demand, saying (it
being pre-Massachusetts v. EPA) that the agency lacked authority to set NSPSs for GHGs.
Review of the final rule was sought in the D.C. Circuit.17 In 2006, the court severed the portion of
the case dealing with regulation of GHGs, titling it New York v. EPA.18 In 2007, a few months
after the Supreme Court decision in Massachusetts v. EPA, this severed case was remanded to
EPA for further proceedings in light of that decision (this section infra).
Two other NSPS suits concern oil and natural gas—the production side in one suit; the refining
side in the other. As to production, plaintiffs in WildEarth Guardians v. Johnson, No. 1:09 CV
00089 (D.D.C. filed January 14, 2009), invoke the CAA citizen suit provision to force EPA
performance of alleged nondiscretionary duties under both the NSPS and National Emission
Standards for Hazardous Air Pollutants provisions of the act.19 The complaint notes CO2, and
particularly methane, as GHG pollutants of concern. Since neither of these pollutants is listed as a
hazardous air pollutant, it may be surmised that the sole portion of the lawsuit pertinent to climate
change is the NSPS claim. That claim alleges EPA’s failure to review and revise the NSPS for the
Crude Oil and Natural Gas Production category since 1985, despite the CAA requirement that
NSPSs be reviewed, and if appropriate revised, every eight years.20
As for oil and gas refining, New York and 11 other states (CA, CT, DE, ME, MA, NH, NM, OR,
RI, VT, and WA) filed a petition for review in 2008 challenging EPA’s revisions that year of its
existing NSPS for petroleum refineries.21 Petitioners’ argument in New York v. EPA, No. 08-1279
(D.C. Cir. filed August 25, 2008), is that EPA acted arbitrarily and capriciously in failing to
determine whether GHGs from petroleum refineries endanger public health and welfare and by
failing to promulgate NSPSs for GHG emissions in the refinery rule. Petitioners cite CAA section
111(b)’s requirement that EPA make an endangerment determination, establish NSPS for a source
category that contributes significantly to such endangerment, and revise the NSPS at least every
eight years. This lawsuit has been consolidated with several others, including Environmental
Integrity Project v. EPA (No. 08-1281), and is now styled American Petroleum Institute v. EPA
16 71 Fed. Reg. 9,866 (February 27, 2006).
17 Coke Oven Environmental Task Force v. EPA, No. 06-1131 (D.C. Cir. filed April 7, 2006).
18 No. 06-1322.
19 NESHAPSs are governed by CAA section 112, 42 U.S.C. § 7412.
20 CAA § 111(b)(1)(B); 42 U.S.C. § 7411(b)(1)(B).
21 73 Fed. Reg. 35,838 (June 24, 2008), codified at 40 C.F.R. Part 60, Subpart Ja. The agency’s response to commenters
wanting EPA to promulgate an NSPS for GHGs as part of its rule revisions is at 35858-35860. The agency’s response
is interesting because owing to the Supreme Court decision in Massachusetts v. EPA the previous year, EPA could no
longer argue that the term “air pollutant” in section 111 does not reach GHGs. One argument used by EPA is that the
eight-year reviews of NSPSs required by CAA section 111(b)(1)(B) do not mandate promulgation of NSPSs for
pollutants not already covered by the NSPS under review. EPA conceded that it had promulgated NSPSs for previously
uncovered pollutants in the past, but argued that this was discretionary. It is better, the agency asserted, to address GHG
emissions through the process begun by its Advance Notice of Proposed Rulemaking.
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(No. 08-1277). On December 15, 2008, the D.C. Circuit granted a motion to hold the case in
abeyance while EPA considers various petitions for administrative reconsideration of the rule.22
The most recent NSPS suit, Environmental Integrity Project v. U.S. EPA, No. 1:09-CV 00218
(D.D.C. filed February 4, 2009), seeks to compel EPA to perform its nondiscretionary duty to
review, and if necessary revise, its NSPS for nitric acid plants, including for nitrous oxide (N2O),
a powerful GHG.. The standard, plaintiffs allege, has not been reviewed since 1984,
notwithstanding the CAA requirement that NSPSs be reviewed and if appropriate revised every
eight years.23
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Rather than seeking general rulemaking as above, these legal efforts seek to impose CO2 emission
limits on specific manufacturing, power, and heating plants.
In Northwest Environmental Defense Center v. Owens Corning Corp., environmental groups
invoke the CAA citizen suit provision to enforce the act’s “new source review” requirement as to
GHG emissions.24 They contend that Owens Corning is constructing a manufacturing plant in
Oregon with the potential to emit more than 250 tons per year of harmful gases, without having
obtained the required CAA permit.25 The principal such gas is HCFC-142b, which plaintiffs
contend is a potent GHG. In a preliminary ruling, the court held that plaintiffs have standing,
notwithstanding that the climate change impacts of the plant’s GHG emissions would be
“indirect.” Anticipating the Supreme Court’s rationale for granting standing in Massachusetts v.
EPA, the court found that standing was not precluded by the fact that the injury to plaintiffs would
be shared with many others, nor because the relief sought would not lead to a complete
elimination of climate change impacts.
At least three proceedings have involved Sierra Club appeals to EPA’s Environmental Appeals
Board of recently issued “new source review” permits in Prevention of Significant Deterioration
(PSD) areas.26 In each case, the issue has been whether a permit issued for construction of a new
“major emitting facility” or major modification in a PSD area must require the use of “best
available control technology” (BACT) for CO2 emissions from that source.27 In two places, the
CAA requires such new facilities or major modifications to install BACT for “each pollutant
22 See CAA § 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)B) (when EPA Administrator may convene proceeding for
reconsideration of rule). One petition, from the Environmental Integrity Project, Sierra Club, and the Natural Resources
Defense Council, cites as its first objection EPA’s refusal to issue NSPSs for GHGs (CO2 and methane) from refineries.
23 Id.
24 434 F. Supp. 2d 957 (D. Or. 2006).
25 CAA § 165, 42 U.S.C. § 7475.
26 PSD areas are areas that are either attaining the National Ambient Air Quality Standard for the pollutant in question
or are unclassifiable for that pollutant. CAA § 161, 42 U.S.C. § 7471. The PSD portion of the CAA, 42 U.S.C. §§
7470-7492, sets limits on the degree to which ambient concentrations of a pollutant will be allowed to rise toward the
cap set by the National Ambient Air Quality Standard for that pollutant.
27 “Major emitting facility” is defined at CAA section 169(1), 42 U.S.C. § 7479(1). “Best available control
technology” is defined at CAA section 169(3), 42 U.S.C. § 7479(3).
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subject to regulation under this Act.”28 As indicated below, Sierra Club has used two arguments in
support of its position that GHGs are “pollutant[s]subject to regulation” by the statute.
In the first proceeding, In re Christian County Generation, LLC, PSD Appeal No. 07-01, 13
E.A.D. ____ (January 28, 2008), Sierra Club objected to the issuance of a PSD permit by a state
agency for construction of a coal-fired electric power plant. The Board denied the petition
because Sierra Club had not raised its argument during the public comment period on the draft
permit. Sierra Club argued that the comment period closed before the Supreme Court decision in
Massachusetts v. EPA holding that GHGs are “air pollutants” under the CAA, but the EAB found
that the arguments in that case were reasonably ascertainable at the time of the public comment
period.
The second and most publicized case, In re Deseret Power Electric Cooperative, PSD Appeal No.
07-03, 14 E.A.D. _____ (November 13, 2008), involved a PSD permit issued by EPA Region 8 to
allow the construction of a new waste-coal-fired utility generating unit at an existing power plant
located near Bonanza, Utah. The Board rejected Sierra Club’s contention that “subject to
regulation” has a plain meaning compelling Region 8 to impose a CO2 BACT limit in the PSD
permit. Sierra Club had pointed to EPA’s 1993 amendment of its regulations requiring monitoring
and reporting of CO2 emissions,29 as directed by section 821 of the 1990 CAA Amendments. At
the same time, the Board rejected the Region’s argument that it was limited by an historical
agency interpretation to read “subject to regulation” as meaning “subject to a statutory or
regulatory provision that requires actual control of emissions of that pollutant.” Since EPA has yet
to issue a CAA regulation requiring actual control of CO2 emissions, Region 8 argued, BACT for
CO2 is not required. Hence, the Board remanded the permit to the Region for it to reconsider
whether to impose a CO2 BACT limit. The Board recognized, however, that given the
significance of the issue, it would be best if the Agency, rather than one of its regional offices,
defined “subject to regulation under this Act.”
This the EPA Administrator did a month later. In a memorandum issued December 18, 2008, he
declared EPA’s “definitive interpretation” of its regulation defining which pollutants trigger new
source review in PSD areas.30 Reprising Region 8’s argument in Deseret Power, the
Administrator said that this regulation “exclude[s] pollutants for which EPA regulations only
require monitoring or reporting but ... include[s] each pollutant subject to either a provision in the
Clean Air Act or regulation adopted by EPA under the Clean Air Act that requires actual control
of emissions of that pollutant.” To reiterate, this position excludes CO2 until EPA promulgates a
regulation covering CO2 emissions. Sierra Club petitioned for review of the memorandum, which
was granted by the newly arrived Obama Administration on February 17, 2009.
In the third EAB appeal, In re Northern Michigan University (Ripley Heating Plant), PSD Appeal
No. 08-02, 14 E.A.D. ______ (February 18, 2009), Sierra Club challenges a permit issued by the
Michigan Department of Environmental Quality to the university, allowing it to construct a new
circulating fluidized bed boiler at the heating plant.31 Sierra Club’s argument was the same as in
Deseret, and the Board ruled identically—that is, it directed the Michigan agency, guided by
28 CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4); CAA § 169(3), 42 U.S.C. § 7479(3).
29 40 C.F.R. Part 75.
30 40 C.F.R. § 52.21(b)(50) (defining “Regulated NSR pollutant”).
31 The boiler would have functioned as a cogeneration unit providing both electrical power and heat to the university by
burning wood, coal, and natural gas.
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Deseret, to consider whether “pollutant subject to regulation” requires application of a BACT
limit to CO2 emissions. The Board’s decision makes no mention of the Administrator’s December,
2008 memo or EPA’s grant of review thereof in 2009.
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In 1999, 19 organizations petitioned EPA to regulate emissions of GHGs (CO2, methane, nitrous
oxide, and hydrofluorocarbons) from new motor vehicles. The rulemaking petition cited the
agency’s alleged mandatory duty to do so under CAA section 202(a)(1).32 That section directs the
EPA Administrator to prescribe emission standards for “any air pollutant” from new motor
vehicles “which, in his judgment cause[s], or contribute[s] to air pollution which may reasonably
be anticipated to endanger public health or welfare.”
In 2003, EPA denied the section 202 petition.33 Much of the agency’s rationale followed a new
General Counsel memorandum, issued the same day.34 Contrary to its Clinton Administration
precursor, this new OGC memorandum concluded that the CAA does not grant EPA authority to
regulate CO2 and other GHG emissions for their climate change impacts.
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EPA’s denial of the section 202 petition prompted a suit in the D.C. Circuit by twelve states (CA,
CT, IL, MA, ME, NJ, NM, NY, OR, RI, VT, WA) and others. Opposing the challenge, besides
EPA, were ten state intervenors (AK, ID, KS, MI, ND, NE, OH, SD, TX, UT), plus several
automobile- and truck-related trade groups. In 2005, a split panel in Massachusetts v. EPA
rejected the suit,35 and the Supreme Court granted certiorari.
In Massachusetts v. EPA, the Supreme Court ruled 5-4 for petitioners on all three issues in the
case.36 First, Massachusetts, the majority held, had standing to bring the claim. Second, EPA has
authority to regulate motor vehicle GHGs under section 202, since “air pollutant” includes GHG
emissions. And third, the phrase “in his judgment” in section 202 does not allow EPA to exercise
discretion against regulating based on policy considerations. The ruling in favor of petitioners
was forecast early in the majority opinion by its opening sentences: “A well-documented rise in
global temperatures has coincided with a significant increase in the concentration of carbon
32 42 U.S.C. § 7521(a)(1).
33 EPA, Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922 (September 8, 2003).
EPA’s ruling followed a suit by the original petitioners alleging unreasonable delay. Center for Technology Assessment
v. Whitman, No. 02-CV-2376 (D.D.C. filed December 5, 2002).
34 Memorandum from Robert E. Fabricant, EPA General Counsel, to Marianne L. Horinko, EPA Acting Administrator,
EPA’s Authority to Impose Mandatory Controls to Address Global Climate Change Under the Clean Air Act (August
28, 2003).
35 415 F.3d 50 (D.C. Cir. 2005).
36 549 U.S. 497 (2007).
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dioxide in the atmosphere. Respected scientists believe the two trends are related.”37 (Nor did the
dissenters dispute this.)
Most of the decision is devoted to the first issue, standing. The Court found that petitioners had
two factors in their favor. First, the CAA specifically authorizes challenges to agency action
unlawfully withheld, such as here.38 A litigant to whom Congress has accorded such a procedural
right, said the Court, “can assert that right without meeting all the normal standards for
redressability and immediacy”39—two prerequisites of the standing test. Second, the Court found
it “of considerable relevance”40 that the petitioner injury on which it focused—Massachusetts’s
loss of shore land from global-warming-induced sea level rise—was that of a sovereign state.
States are “not normal litigants for the purposes of invoking federal jurisdiction,”41 said the Court,
noting their quasi-sovereign duty to preserve their territory.
Having described petitioners’ favored position in establishing standing, it was surprising that the
Court then undertook a traditional standing analysis. As to the first prong of the standing test—
whether plaintiff has demonstrated actual or imminent “injury in fact” of a concrete and
particularized nature—the Court homed in on Massachusetts’s status as owner of much of the
shore land being lost to sea level rise. That this injury may be widely shared with other coastal
states does not disqualify this injury, said the Court; it is nonetheless concrete.
The second prong of the standing test is causation, requiring that the injury of which the plaintiff
complains is fairly traceable to the defendant. EPA did not dispute the existence of a causal
relationship between GHG emissions and climate change. It did argue, however, that any
reduction in GHG emissions achieved through the current litigation would be too small a portion
of worldwide GHG emissions to make a cognizable difference in climate change. In a ruling that
may be of benefit to environmental plaintiffs in many contexts, the Court held that even an
agency’s refusal to take a “small incremental step”42 that would result in only a modest reduction
in worldwide GHG emissions, is enough for standing purposes.
The third and final prong of the standing test is redressability, demanding that the remedy sought
by the plaintiff is one that is likely to redress his/her injury. Here, the remedy sought was EPA
regulation of GHG emissions from new motor vehicles. The Court found that this remedy
satisfied redressability because while it would not by itself reverse climate change, it would
nonetheless slow or reduce such change. Nor, given the “enormity”43 of the potential effects of
climate change, was it relevant to the Court that the full effectiveness of the remedy would be
delayed until existing cars and trucks on the road were largely replaced by new ones.
In contrast with the Court’s lengthy discourse on standing, its handling of the CAA issues in the
case is quite brief. On the authority question, the Court said that the CAA’s broad definition of
“air pollutant” simply cannot be squared with EPA’s view that GHGs are not included. The Court
rejected EPA’s argument that federal laws enacted following enactment of this definition—laws
37 Id. at 504-505.
38 CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1).
39 549 U.S. at 517-18.
40 Id. at 518.
41 Id.
42 Id. at 524.
43 Id. at 525.
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emphasizing interagency collaboration and research—suggest that Congress meant to curtail
EPA’s power to use mandatory regulations in addressing air pollutants. Nor was the Court
impressed with EPA’s argument that “air pollutant” in the CAA could not include vehicle GHG
emissions because EPA standards for such emissions could be satisfied only by improving fuel
economy, a goal assigned to the Department of Transportation under a different statute (the
Energy Policy and Conservation Act44).
Finally, on the discretion issue, the majority concluded that “in his judgment” refers only to
whether an air pollutant “may reasonably be anticipated to endanger public health or welfare.”
Thus, said the Court, EPA can avoid taking further action in response to the section 202 petition
“only if it determines that greenhouse gases do not contribute to climate change or if it provides
some reasonable explanation as to why it cannot or will not exercise its discretion.” It rejected
EPA’s stated policy reasons for refusing to regulate GHG emissions, such as its claim that
voluntary executive branch programs already provide an effective response to climate change and
that unilateral EPA regulation of vehicle GHG emissions could weaken U.S. efforts to persuade
developing countries to reduce the GHG intensity of their economies. Such reasons “have nothing
to do with whether greenhouse gas emissions contribute to climate change.”45 In short, said the
Court, the only question is whether sufficient information exists to make an endangerment finding
under section 202.
Accordingly, the Supreme Court reversed the D.C. Circuit opinion and remanded the case to that
court for further proceedings.46 On September 14, 2007, the D.C. Circuit vacated EPA’s denial of
the section 202 petition and remanded the matter to the agency. (Further developments are
described in the following “Aftermath” section.)
A four-justice dissent by Chief Justice Roberts in Massachusetts v. EPA disputed the majority’s
holding of standing. A dissent by Justice Scalia for the same four justices argued that agency
policy preferences may appropriately be considered as part of EPA’s decision whether to issue a
“judgment,” conceding that the judgment, if made, must be limited to whether vehicle GHG
emissions cause endangerment. Justice Scalia also disputed the majority’s holding that “air
pollutant” in section 202 includes GHGs.
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The Court’s decision left EPA with three options: make a finding that motor vehicle GHG
emissions may “endanger public health or welfare” and issue emissions standards; make a finding
that such emissions do not satisfy that prerequisite; or decide that climate change science is so
uncertain as to preclude making a finding either way (or cite some other “reasonable explanation”
why it will not exercise its discretion either way).47 As to the state of climate change science, the
Court’s focus on the policy reasons EPA gave as part of exercising its “judgment” obscures the
fact that the agency’s rejection of the petition stemmed in part from expressions of scientific
44 49 U.S.C. § 32902.
45 549 U.S. at 501.
46 Three weeks after the decision in Massachusetts v. EPA, the Senate held a hearing devoted exclusively to it: The
Implications of the Supreme Court’s Decision Regarding EPA’s Authorities with Respect to Greenhouse Gases Under
the Clean Air Act, Hearing Before the Senate Comm. on Env’t and Pub. Works (April 24, 2007) (hereinafter Senate
hearing).
47 Justice Scalia’s dissent characterizes EPA’s three options similarly: 127 S. Ct. at 1472.
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uncertainty in a 2001 National Research Council report on the science of climate change.
Whether scientific reports since the petition rejection in 2003 have foreclosed the scientific-
uncertainty rationale is beyond the scope of this report.48
The EPA Administrator did say after the decision that although it bars EPA use of policy
considerations as a basis for denying the petition, it left open whether the agency can invoke them
when actually writing the regulations, should the agency make an endangerment finding.49 CAA
section 202 does not impose any stringency or other criteria on GHG emission standards
promulgated under the section. Given the wide latitude EPA has in setting section 202 standards
for GHGs, the possibility exists that EPA, following an endangerment finding, could set voluntary
standards, or standards pegged to the CAFE standards for fuel economy, or standards that must be
complied with only after the President certifies that developing nations have put adequate GHG
emission limits into effect.
In May, 2007, President Bush asked EPA to have CAA regulations limiting vehicle GHG
emissions in place by the end of 2008 and to use the President’s 2007 State of the Union proposal
for raising the CAFE standards as a guide.50 As late as early December, 2007, EPA was
consistently stating that it intended to issue proposed regulations by the end of 2007. However,
the enactment of the Energy Independence and Security Act in December, 2007,51 with its
increase in CAFE standards, led EPA to back off from any firm deadline for issuance of mobile-
source GHG emission standards. In early 2008, EPA proposed instead to issue an advance notice
of proposed rulemaking (ANPR) addressing the full range of Massachusetts v. EPA’s
ramifications throughout the CAA, not just on section 202 standards. In response, the
Massachusetts v. EPA petitioners in April, 2008 requested the D.C. Circuit to order EPA to
comply with the Supreme Court’s remand and the Circuit’s mandate within 60 days (by choosing
one of the three options noted earlier). The court denied the request in June, 2008.52 The
following month, EPA issued a lengthy ANPR that, it said, “reflects the complexity and
magnitude of the question of whether and how greenhouse gases could be effectively controlled
under the Clean Air Act”53—extending well beyond the narrow section 202 endangerment issue in
the case. It warned that regulating GHGs under any provision of the CAA “could result in an
unprecedented expansion of EPA authority that would have a profound effect on virtually every
sector of the economy....”54 Under the Obama Administration, EPA is moving toward the first
option listed by the Supreme Court—an “endangerment finding”—by mid-April, 2009, followed
by a 60-day comment period before the proposed finding is finalized.
48 See CRS Report RL34266, Climate Change: Science Highlights, by Jane A. Leggett.
49 Senate hearing, supra note 46 (prepared statement of EPA Administrator Stephen Johnson). The EPA Administrator
was apparently referring to the Court’s statement that “We need not and do not reach the question ... whether policy
concerns can inform EPA’s actions in the event that it makes [an endangerment finding].” 549 U.S. at 534-535.
50 Briefing by Conference Call on the President’s Announcement on CAFE and Alternative Fuel Standards, May 14,
2007 (statement of EPA Administrator Stephen Johnson), available at whitehouse.gov/news/releases/2007. See also
Exec. Order No. 13432, Cooperation Among Agencies in Protecting the Environment with Respect to Greenhouse Gas
Emissions from Motor Vehicles, Nonroad Vehicles, and Nonroad Engines, 72 Fed. Reg. 27,717 (May 16, 2007).
51 P.L. 110-140.
52 Massachusetts v. EPA, No. 03-1361 (D.C. Cir. June 26, 2008). The court provided no explanation of its decision,
except for an opinion by Judge Tatel concurring in part and dissenting in part. Judge Tatel agreed with the other two
judges that no writ of mandamus was yet justified. Still, he would have held the petitioners’ motion in abeyance and
required periodic updates from the agency because its postponement was indefinite.
53 73 Fed. Reg. 44,354, 44,355 (July 30, 2008).
54 Id.
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As the ANPR asserts, the Court’s ruling in Massachusetts v. EPA has many implications beyond
its four corners.
On the substantive (non-standing) side, the Court’s ruling upholding CAA coverage of GHG
emissions from mobile sources improves the prospects of litigation seeking to have EPA restrict
GHG emissions from stationary sources as well. The stationary-source provisions of the CAA use
terms similar to that of section 202—in particular, “air pollutant,” “in his judgment,” and
“endanger.”55 As the earlier subsection on suits seeking general CAA rulemaking indicated, such
an effort to compel EPA regulation of stationary source GHGs is already underway as to NSPSs.
Further, if EPA sets a national ambient air quality standard for CO2, GHGs would be covered
under the CAA’s new source review permitting program for major emitting facilities and
modifications in Prevention of Significant Deterioration areas.56 Presumably, best available
control technology for CO2 emissions would then have to be installed on such facilities.57
On the mobile-source side, Massachusetts v. EPA is expressly relied upon in at least seven
additional rulemaking petitions seeking EPA regulation of GHGs from mobile sources. As
described in the ANPR, the petitions seek rulemaking under CAA sections 202(a)(3), 211, 213,
and 231 to limit GHG emissions from (1) fuels and a wide array of mobile sources including
ocean-going vessels, (2) all other types of nonroad engines and equipment, such as locomotives,
construction equipment, farm tractors, forklifts, harbor crafts, and law and garden equipment, (3)
aircraft, and (4) rebuilt heavy-duty highway engines.58
Beyond the federal clean air program, the Supreme Court’s decision will likely be pivotal to the
fortunes of plaintiffs in other climate change litigation owing to its discussion of standing. The
question will be the extent to which the Court’s finding of standing was contingent, as it obliquely
suggested, on the existence of a state-sovereign plaintiff59 and the presence in the CAA of an
explicit provision allowing the filing of administrative petitions.
Ironically, the “environmental win” in Massachusetts v. EPA has thwarted the environmental side
in a climate-change-related nuisance case. One court used the decision as peripheral support for
dismissing a nuisance action on “political question” grounds, reasoning that the Supreme Court
has now found authority over GHG emissions to reside in the Federal Government.60 In the
future, the decision may also undermine federal common law claims, on the argument that
Congress intended to leave no room for courts to develop overlapping federal common law
restricting GHG emissions.
55 See, e.g., CAA § 108(a)(1)-(2), 42 U.S.C. § 7408(a)(1)-(2) (requiring the EPA Administrator to maintain a list of
each “air pollutant, emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare,” and then issue air quality criteria and national ambient air quality
standards for that air pollutant).
56 CAA § 165, 42 U.S.C. § 7475.
57 CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4).
58 73 Fed. Reg. at 44,399.
59 See Sara Zdeb, From Georgia v. Tennessee Copper to Massachusetts v. EPA: Parens Patriae Standing for State
Global-Warming Plaintiffs, 96 Geo. L. J. 1059 (2008).
60 California v. General Motors Corp., 2007 Westlaw 2726871 (N.D. Cal. September 17, 2007). This case is discussed
in Section V.
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The Marine Mammal Protection Act (MMPA)61 bars the taking of marine mammals, with
exceptions. One exception is for “incidental takings” by specified activities.62 It provides that
persons “engage[d] in a specified activity (other than commercial fishing) within a specified
geographical region” may request the Secretary of the Interior or Commerce to authorize, for up
to five years, the incidental, but not intentional, taking of small numbers of marine mammals. The
Secretary must grant the authorization if he/she makes certain findings—including that the effect
of the incidental take will be “negligible”—and promulgates rules setting out permissible
methods of taking by the specified activity.
In Center for Biological Diversity v. Kempthorne, No. 3:07-CV-0141 (D. Alaska April 22, 2008),
transferred from No. 07-CV-00894 (N.D. Cal. filed February 13, 2007), environmental groups
challenge one such “incidental taking” rule -- authorizing the incidental take of polar bears and
Pacific walrus for five years (2006-2011) resulting from oil and gas activities in the Beaufort Sea
and adjacent coastal areas of the Alaska north slope.63 Plaintiffs argue that the rule violates the
MMPA by permitting more than a “negligible” impact on the species, based on the combined
impact of oil-and-gas activities and the weakened condition of polar bears due to climate
change.64 The district court dismissed the suit, holding that the determination by the Fish and
Wildlife Service (FWS) of negligible impact was reasonably based on the administrative record.
An appeal has been filed. (This lawsuit also contains a National Environmental Policy Act claim,
discussed in Section IV.)
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Under the Endangered Species Act (ESA),65 animals (and plants) may be listed as endangered or
threatened. Particularly relevant to climate change litigation are ESA sections 9 and 7.66
61 16 U.S.C. §§ 1361-1421h.
62 16 U.S.C. § 1371(a)(5). In the MMPA, “take” means “to harass, hunt, capture, or kill” any marine mammal, or
attempt to do so. 16 U.S.C. § 1362(13).
63 71 Fed. Reg. 43,926 (August 2, 2006).
64 In a case of the same name, Center for Biological Diversity v. Kempthorne, No. 07-5109 (N.D. Cal. filed October 4,
2007), environmental groups challenge the Secretary of the Interior’s failure to issue updated stock assessment reports
for marine mammals under his jurisdiction (sea otters, polar bears, walrus, and manatees) within the time frames
mandated by the MMPA. The complaint asserts as examples that since the last stock assessment reports on the polar
bear and walrus, “global warming has caused the loss of sea ice upon which [those species] depend....” The case was
settled in late 2008, with deadlines for new stock assessments.
65 16 U.S.C. §§ 1531-1544. The ESA defines “take” similarly to the MMPA, see supra note 62. 16 U.S.C. § 1532(19).
66 See John Kostyak and Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 Envtl. L. Rptr.
10203 (Apr. 2008); Sarah J. Morath, The Endangered Species Act: A New Avenue for Climate Change Litigation?, 29
Pub. Land & Res. L. Rev. 23 (2008); Ari Sommer, Student Note, Taking the Pit Bull Off the Leash: Siccing the
Endangered Species Act on Climate Change, 36 B.C. Envtl. Affairs L. Rev. 273 (2009).
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Section 9 makes it unlawful to “take” a member of a listed endangered species,67 and has been
extended by regulation to most threatened species.68 Exceptions from the take prohibition are
possible, chiefly through incidental take permits. The other provision, section 7, demands that
each federal agency “insure that any action authorized, funded, or carried out by such agency ... is
not likely to jeopardize the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of [designated critical habitat] of such
species....”69 To achieve this goal, section 7 directs a federal agency to consult with the
appropriate wildlife agency—the FWS or National Marine Fisheries Service (NMFS)—to
determine the effect its action may have on listed species or their habitats. This is called “section
7 consultation.” Then, the FWS or NMFS prepares a “biological opinion” concluding either that
the proposed action would not violate the mandate of no jeopardy or adverse modification, or that
it would violate the mandate, in which case FWS or NMFS must suggest “reasonable and prudent
alternatives” that would not violate the mandate.
In Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007),
environmental and sport fishing groups attacked the FWS biological opinion prepared for the
2004 Long-Term Central Valley Project and State Water Project Operations Criteria and Plan and
certain related future actions. The biological opinion concluded that project operations would not
jeopardize the continued existence of the Delta smelt, a threatened species, or adversely modify
its designated critical habitat—that is, would not violate ESA section 7. The court, however, held
that the biological opinion was arbitrary and capricious in ignoring data about climate change that
may adversely affect the Delta smelt and its habitat. The court observed, for example, that the
opinion was based on the assumption that the hydrology of the waters affected by the 2004 plan
would follow historical patterns for the next 20 years, an assumption that studies on the potential
effects of climate change on water supply reliability did not support.
A companion case pending before the same judge, Pacific Coast Federation of Fishermen’s
Associations/Institute for Fisheries Resources v. Gutierrez, No. 1:06-CV-00245, 2008 WL
2223070 (E.D.Cal. May 20, 2008), successfully challenged the NMFS biological opinion
prepared in connection with the same project for various salmon and trout species—based on its
“total failure to address, adequately explain, and analyze the effects of global climate change on
the species.” Id. at *60.
More ESA cases are likely on the way in connection with a campaign spearheaded by the Center
for Biological Diversity (CBD). CBD has filed multiple petitions to have animals listed as
endangered or threatened due in various degrees to climate change impacts on their habitat. Given
that some of these petitions have been successful (and more may be in the future), the Center is
likely to test in court whether substantial GHG sources run afoul of protections afforded those
species by the ESA.
67 16 U.S.C. § 1538(a)(1)(B)-(C).
68 By general rule, the Fish and Wildlife Service has extended all of the endangered species prohibitions to threatened
animals. 50 C.F.R. § 17.31. “Special rules,” withdrawing particular threatened species from aspects of the general
regime, have been promulgated for those species with atypical management needs, such as grizzly bears. 50 C.F.R. §
17.40(b).
69 16 U.S.C. § 1536(a)(2). Because section 7 is more easily triggered when the species’ habitat receives a formal
designation as “critical habitat,” litigation to compel such designation is another aspect of environmental groups’
efforts to use the ESA against global warming. See ESA § 4(a)(3), 16 U.S.C. § 1533(a)(3).
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Three climate-change-related proposals to list a species have reached the actual listing stage thus
far. The first, in which climate change is only a contributing factor, was NMFS’ listing of the
staghorn coral and elkhorn coral as threatened in 2006.70 The second, garnering considerably
more attention, was the May 15, 2008 listing of the polar bear as threatened,71 under pressure of a
court-imposed deadline requiring a decision for or against listing by that date.72 The polar bear
listing was based largely on the many studies as to the disproportionately large impact of climate
change on the Arctic and the resulting loss of sea ice required by polar bears as habitat.73 The
third, again with climate change but a contributing factor, is NMFS’ listing of the black abalone
as endangered in 2009.74 In addition to the coral, polar bear, and abalone, CBD has petitioned the
FWS to list as either endangered or threatened Kittlitz’s murrelet, a seabird (2001), 12 species of
penguins (2006), the American pika, an alpine mammal (2007), the ashy storm-petrel, another
seabird (2007), the ribbon seal (2007),75 the Pacific walrus (2008), and the ringed, bearded, and
spotted seals (2008). In each instance, the Center asserts global warming to be a cause, principal
or otherwise, of the species’ plight. (Not included in this report are the CBD suits challenging
agency failures to make the statutorily mandated interim findings in the petition process for
listing, known as 90-day or 12-month findings.)
With the listing of the corals and polar bear—particularly the latter where the climate change
nexus is so clear—the question moves to the fore whether operating a fossil-fuel-fired power
plant or other major GHG source violates section 9—causes a prohibited “take”—through the
effects of its GHG emissions, via climate change, on polar bear habitat.76 Notable here is that
“take” is statutorily defined to include “harm” to a member of a listed species, and “harm,” in
turn, is defined by regulation to include certain “significant habitat modification[s] or
degradation[s].”77 The crux, presumably, is whether the causal link between the power plant’s
GHG emissions and the effect on the species habitat is sufficiently direct and substantial to
constitute a “take,” a question beyond the scope of this report. If a take is found, the power plant
would require an incidental take permit to operate, such permit likely containing restrictions on
the amount of GHGs that could be emitted. Likewise, the argument runs, a federal agency issuing
a permit for power plant construction might have to initiate section 7 consultation.
In 2008, under the George W. Bush Administration, the FWS repeatedly asserted that its listing of
the polar bear would not implicate the ESA—neither section 9 nor section 7 -- based on the GHG
emissions from an activity. The FWS sought to ensure the irrelevance of GHG emissions to the
ESA in several ways. One way was by issuing a “special rule” for the polar bear under ESA
section 4(d) stating that section 9 “take” prohibitions do not apply to “any taking of polar bears
70 89 Fed. Reg. 26,852 (May 9, 2006). The Center for Biological Diversity has also settled a suit requiring NMFS to
designate critical habitat for ESA-listed corals. The final critical habitat rule is at 73 Fed. Reg. 72,209 (Nov. 26, 2008).
71 73 Fed. Reg. 28,211 (May 15, 2008), codified at 50 C.F.R. § 17.11(h).
72 Center for Biological Diversity v. Kempthorne, No. 08-1339 (N.D. Cal. April 28, 2008).
73 See CRS Report RL33941, Polar Bears: Listing Under the Endangered Species Act, by Eugene H. Buck, M. Lynne
Corn, and Kristina Alexander.
74 74 Fed. Reg. 1,937 (January 14, 2009).
75 Listing of the ribbon seal was denied by NMFS on December 30, 2008 (73 Fed. Reg. 79,822). CBD has filed its 60-
day notice of intent to sue.
76 See generally Brendan R. Cummings and Kassie R. Siegel, Ursus maritimus: Polar Bears on Thin Ice, Natural Res.
& Env’t (ABA) 3 (Fall 2007) (discussing how “the listing process for the polar bear highlights the possibilities and
limitations of using the ESA to address otherwise unregulated GHG emissions”).
77 50 C.F.R. §§ 17.3 (Fish and Wildlife Service), 222.102 (NOAA Fisheries).
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that is incidental to, but not the purpose of, carrying out an otherwise lawful activity” occurring
anywhere in the United States except Alaska.78 A half-dozen or more lawsuits challenging the
polar bear listing and the accompanying “special rule”—most including grounds related to
climate change -- were consolidated on December 3, 2008 in the D.C. federal district court by the
Judicial Panel on Multidistrict Litigation.79
Another way used by FWS (and NMFS) to keep the ESA and GHG emissions separate was by
amending the section 7 consultation regulations to say that no consultation is required when a
federal agency action is not anticipated to result in “take” and the action’s effects are “manifested
through global processes” and either (a) cannot be reliably predicted at the scale of the species’
range, or (b) will have insignificant impact on the species or its habitat.80 The amended section 7
regulations also lessen the chance that GHG emissions will trigger consultation by defining
“indirect effects” of federal agency actions narrowly.81 Owing in greater or lesser degree to the
amended rule’s impact on section 7 consideration of climate change, three lawsuits challenging
the rule have been filed by environmental groups in the federal district court for the Northern
District of California,82 and one has been filed there by the State of California.83 They will likely
be consolidated.84
With the arrival of the Obama Administration, Congress in 2009 enacted a provision stating that
the relevant Secretary may withdraw the polar bear special rule and the 2008 amendments to the
consultation regulations “without regard to any provision of statute or regulation that establishes a
requirement for such withdrawal.” This streamlined withdrawal authority expires 60 days from
March 11, 2009.85
78 73 Fed. Reg. 28,306 (May 15, 2008) (interim final rule); 73 Fed. Reg. 76,249 (Dec. 16, 2008) (final rule). Codified at
50 C.F.R. § 17.40(q)(4). Special rules, also known as “4(d) rules,” are authorized by ESA section 4(d) for threatened
(not endangered) species that are considered to have special management needs. (By regulation, other threatened
species receive the same protections that endangered species do.) The ESA permits considerable flexibility in the
crafting of 4(d) rules, demanding only that they be “necessary and advisable to provide for the conservation of [the
threatened] species.” 16 U.S.C. § 1533(d).
79 In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-764. For background, see
CRS Report RL34573, Does the Endangered Species Act (ESA) Listing Provide More Protection of the Polar Bear?: A
Look at the Special Rules, by Kristina Alexander.
80 73 Fed. Reg. 76,272 (Dec. 16, 2008). Codified at 50 C.F.R. § 402.03(b).
81 Codified at 50 C.F.R. § 402.02.
82 Center for Biological Diversity v. Kempthorne, No. C 08-05546 MHP; Natural Resources Defense Council v. U.S.
Department of the Interior, C 08-05605 MMC; National Wildlife Federation v. Kempthorne, No. C 08-05654 SI.
83 People of the State of California v. Kempthorne, No. C 08-05775 EMC.
84 Congress has entered the fray as well. H.R. 1431, sec. 306(b), amends the ESA by adding a new sentence: “The
impact of greenhouse gas on any species of fish or wildlife or plant shall not be considered for any purpose in the
implementation of this Act.”
85 Omnibus Appropriations Act for FY 2009, P.L. 111-8, Div. E, § 429.
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In Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d
1172 (9th Cir. 2008), 11 states (CA, CT, ME, MA, NJ, NM, NY, OR, RI, VT, MN), environmental
groups and others attacked a 2006 rule promulgated by the National Highway Traffic Safety
Administration (NHTSA) under the Energy Policy and Conservation Act (EPCA). The rule
established corporate average fuel economy (CAFE) standards for light-duty trucks—defined by
NHTSA to include many SUVs, vans, and pickup trucks—in model years 2008 through 2011.
EPCA says that the light-truck CAFE standard shall be the “maximum feasible” standard that
manufacturers can achieve in a given model year.86 The court found that even assuming NHTSA
may use a cost-benefit analysis to determine the “maximum feasible” standard, it was arbitrary
and capricious not to include in the analysis the benefit of carbon emissions reduction—calling
this “the most significant benefit of more stringent CAFE standards.”87 NHTSA had argued, for
example, that the wide range of values put forward in studies as to how the benefits of reduced
GHG emissions should be monetized justified placing no value on that benefit in its cost-benefit
analysis. The court countered that while there is indeed a range of values in the studies, they are
all greater than zero. Accordingly, the court remanded the CAFE standard to NHTSA for the
agency to include a monetized value for carbon emission reduction in its analysis of the proper
CAFE standard. (There was also a climate-change-related NEPA claim in this lawsuit, discussed
in Section IV.)
Quite recently, CBD filed a petition for review of NHTSA’s rule setting the standard for model
year 2011 passenger cars and light trucks.88 It is unclear from the tersely worded petition whether
climate change concerns underlie this suit, though given the court decision immediately above, it
seems likely.
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In a petition for review, CBD challenges the June, 2007 approval by the Secretary of the Interior
of the Outer Continental Shelf Oil and Gas Leasing Program 2007-2012. Center for Biological
Diversity v. U.S. Dep’t of Interior [sic], No. 07-1247 (D.C. Cir. filed July 2, 2007). CBD alleges
that the Secretary violated the Outer Continental Shelf Lands Act89 by failing to disclose or
analyze the environmental and economic impacts from “the greenhouse gas emissions that would
result from use of oil and gas produced as a result of the [Program].”90 Note that it is not the GHG
emissions from the oil and gas production itself that is at issue, but rather the GHG emissions
resulting from the “use” of that oil and gas in cars, powerplants, or wherever. The defendant and
intervenor-defendant briefs in this case focus heavily on standing, arguing among other things
86 49 U.S.C. § 32902(a).
87 538 F.3d at 1199.
88 Center for Biological Diversity v. National Highway Traffic Safety Admin., No. 09-70972 (9th Cir. filed April 3,
2009).
89 43 U.S.C. § 1331 et seq.
90 Taken from Petitioner Center for Biological Diversity’s Non-Binding Statement of Issues, filed August 3, 2007.
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that only states have standing under Massachusetts v. EPA. (There was also a climate-change-
related NEPA claim in this lawsuit, discussed in Section IV.)
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Much of the climate change litigation is based on statutory requirements that the government
generate, compile, or disclose information.
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To be sure, the National Environmental Policy Act (NEPA) is more than just an information
statute, declaring as it does a sweeping policy that the federal government must consider the
environmental impacts of its actions. However, NEPA ensures that such environmental
consideration will occur chiefly through the production of information, in the form of
environmental assessments and environmental impact statements, and does not require that an
agency choose from among its options the one with the least environmental impact.
The NEPA cases involving climate change represent the oldest and most numerous category of
climate change litigation. Again, not all cases are mentioned in this report.91
The dominant issue has been whether plaintiffs have standing to sue—as mentioned, an issue on
which plaintiffs may be helped by the 2007 Supreme Court decision in Massachusetts v. EPA.
Thus, all the standing issues discussed here should be viewed through the prism of that decision.
The standing determination has been particularly difficult in the context of NEPA, which confers
only a procedural right (having a federal agency prepare an adequate environmental impact
statement (EIS)), not a substantive right (having the agency select a particular course of action
after preparing the EIS). Where courts have found standing and reached the merits, they have
usually accepted that climate change impacts in the proper circumstances are a required
consideration in an EIS.92
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Standing barriers have proved particularly daunting in the D.C. Circuit, thus it is here that
Massachusetts v. EPA may have its greatest effect. In the first significant climate change case,
City of Los Angeles v. National Highway Traffic Safety Admin., 912 F.3d 478 (D.C. Cir. 1990), the
91 An apparently exhaustive survey of the NEPA/climate change cases, decided and pending, is Joseph Mendelson III
(Legal Director, Center for Food Safety and International Center for Technology Assessment), Surveying the National
Environmental Policy Act and the Emerging Issues of Climate Change, Genetic Engineering and Nanotechnology
(October 30, 2007) (copy on file with author).
92 See also International Center for Technology Assessment et al., Petition requesting that the Council on
Environmental Quality amend its regulations to clarify that climate change analyses be included in environmental
review documents (filed February 28, 2008). The Center for American Progress argues that President Obama should
issue an executive order instructing federal agencies to consider climate change in their NEPA-mandated documents.
Nancy Sutley, the chairwoman of CEQ appointed by President Obama, reportedly has said she will be considering the
issue in response to both informal requests from federal agencies and the International Center for Technology
Assessment petition. See generally Conor O’Brien, Student Note, I Wish They All Could Be California Environmental
Quality Acts: Rethinking NEPA in Light of Climate Change, 36 B.C. Envtl. Affairs L. Rev. 239 (2009).
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city attacked a NHTSA decision not to prepare an EIS when it set the corporate average fuel
economy standard at 26.5 mpg for model year 1989 passenger cars—below the statutory default
setting of 27.5 mpg.93 A majority of the D.C. Circuit panel concluded that petitioners had standing
based on their argument that had NHTSA done an EIS considering the climate change impacts of
its one mpg rollback, the agency might have rejected it. This provided the requisite causal nexus,
said the majority, between NHTSA’s decision not to do an EIS and climate change. In dissent,
however, one judge argued that Article III demanded a more precise causal showing, with clear
proof of a nexus between the agency action and harm to the petitioners. On the merits, one judge
in the majority concluded that NHTSA had “inadequately explained why the admitted increase in
carbon dioxide is insignificant within the context of the environmental harm posed by global
warming.”94 She would have remanded NHTSA’s NEPA decision but left the rollback in place in
the meantime. Because the other majority judge ruled for the agency, however, the petition was
denied.
The plaintiff-friendly City of Los Angeles standard for finding global-warming-based standing
was to prove short-lived. Six years later, a divided D.C. Circuit declared en banc that to obtain
standing, a procedural-rights plaintiff must show not only that the government omitted a required
procedure, but that it is substantially probable that the procedural omission will cause a
particularized injury to the plaintiff95—adopting the dissenter’s position in that case. To the extent
City of Los Angeles dispensed with the second, causation-of-a-particularized-plaintiff-injury
requirement, it was expressly overruled. Still later court decisions, however, have cast doubt on
this strict standard.96
In Foundation on Economic Trends v. Watkins, 794 F. Supp. 395 (D.D.C. 1992), the standing bar
was raised during, rather than after, the litigation. Plaintiffs claimed that NEPA required the
Secretaries of Energy, Agriculture, and the Interior to evaluate the effect on climate change of 42
actions and programs under their authority. Plaintiffs’ standing argument was based on
“informational standing,” under which failure to do an EIS discussing possible climate change
impacts satisfies the injury requirement of standing merely by harming plaintiffs’ programs for
disseminating information about climate change to the public. In so arguing, plaintiffs relied on a
line of D.C. Circuit decisions going back two decades. Unfortunately for them, however,
informational standing was limited by the D.C. Circuit during the pendency of their suit. An
amended complaint by the individual plaintiff, arguing that his expected use of his oceanfront
cottage may be curtailed if oceans rise from climate change, was also rejected. Among other
things, said the court, the plaintiff had not met the causation requirement of standing in that he
had not related the environmental harm he predicted to any of the 42 challenged agency actions.
“[T]here is no ‘global warming’ exception to the standing requirements of Article III or the
[Administrative Procedure Act],”97 it asserted.
93 Other model years were involved, too, but only the challenge to the model year 1989 CAFE standard involved a
climate change argument.
94 912 F.2d at 501.
95 Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996). The four dissenting judges argued that the
majority had “misapplied the doctrine of standing to the assertion of a procedural right, such as the preparation of an
EIS, with the consequence that it will be effectively impossible for anyone to bring a NEPA claim in the context of a
rulemaking with diffuse impact.” Id. at 673.
96 See, e.g., Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000).
97 794 F.2d at 401.
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In a suit described in Section III, Center for Biological Diversity v. U.S. Dep’t of Interior [sic],
No. 07-1247 (D.C. Cir. filed July 2, 2007), plaintiff charges that the Secretary of the Interior
failed to analyze in the EIS for his five-year Outer Continental Shelf leasing program (1) the
GHG emissions resulting from the use of the oil and gas produced under the program, and (2) the
effects of global warming on the resources affected by the program “including, but not limited to,
polar bears, walrus, and corals.”
In Montana Environmental Information Center v. Johanns, No. 07-CV-1311 (D.D.C. filed July
23, 2007), dismissed March 20, 2008, challenge was made to the Department of Agriculture’s
Rural Utility Service’s use of low-interest loans to help finance the construction of at least eight
new coal-fired powerplants. The charge was that the EIS for one plant is deficient because it fails
to consider the cumulative impacts of GHG emissions from the eight new plants.
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The standing barriers in the D.C. Circuit seem to be attenuated in the Ninth Circuit where, as far
as research reveals, plaintiffs raising climate change claims in NEPA suits have yet to encounter
standing problems.
In 2002, environmental groups sued the Overseas Private Investment Corp. (OPIC) and Export-
Import Bank of the United States alleging continued failure to comply with NEPA. These federal
agencies provide insurance, loans, and loan guarantees for overseas projects, or to U.S.
companies that invest in overseas projects. Plaintiffs alleged that these overseas projects include
oil and gas extraction and refining, and power plants, which together result in the annual emission
of billions of tons of GHGs, causing climate change in the United States.
In 2005, the district court held that plaintiffs had standing, given what it saw to be the relaxed
standards in the Ninth Circuit for showing standing in cases alleging procedural violations—here,
failure to prepare an EIS.98 Friends of the Earth v. Mosbacher, 2005 Westlaw 2035596 (N.D. Cal.
2005). It is “reasonably probable,” said the court, that emissions from projects supported by the
defendants will threaten plaintiffs’ concrete interests. In 2007, the court reached the merits,
holding on summary judgment motions that defendants need not prepare a programmatic EIS for
the energy projects they finance, and that neither side had shown, as a matter of law, that energy
projects specifically listed in the complaint are or are not “major Federal actions” requiring an
EIS. 488 F. Supp. 2d 889 (N.D. Cal. 2007). The case was settled February 6, 2009, the Export-
Import Bank and OPIC agreeing to implement various measures for considering the GHG
emissions of supported projects.99
98 In finding standing, the judge repudiated an earlier climate change/standing decision of the same court. In Center for
Biological Diversity v. Abraham, 218 F. Supp. 2d 1143 (N.D. Cal. 2002), plaintiffs had sought enforcement of the
Energy Policy Act as it related to the acquisition of alternative fuel vehicles by the United States. In rejecting standing,
this decision spurned plaintiffs’ climate change concerns as “too general, too unsubstantiated, too unlikely to be caused
by defendant’s conduct, and/or too unlikely to be redressed by the relief sought to confer standing.” In Friends of the
Earth, the court neutralized this pronouncement by noting that “Center for Biological Diversity was decided before the
Ninth Circuit clarified in [Citizens for Better Forestry v. U.S. Dep’t of Agriculture, 341 F.3d 961, 972 (9th Cir. 2003)]
that environmental plaintiffs raising procedural concerns need not present proof that the challenged federal project will
have particular environmental effects.”
99 By the time of settlement, the case was styled Friends of the Earth v. Spinelli.
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In Border Power Plant Working Group v. Dep’t of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003),
plaintiff challenged the environmental assessment accompanying applications for permits and
federal rights of way to build electricity transmission lines connecting new power plants in
Mexico with the power grid in Southern California. In part because four of its members were seen
to have procedural standing, the plaintiff organization was held to have organizational standing.100
The court’s standing discussion made no mention of climate change, however, perhaps because
climate change was only a small part of plaintiff’s case. On the merits, the court agreed with
plaintiff that the environmental assessment was legally inadequate because, among other things, it
failed to discuss CO2 emissions from the powerplants and “[t]he record shows that carbon dioxide
... is a greenhouse gas.”101
The decision in Center for Biological Diversity v. NHTSA, 538 F.3d 1172 (9th Cir. 2008), offers a
deja vu to City of Los Angeles, discussed earlier in this section. Both cases involve a NHTSA rule
setting a corporate average fuel economy (CAFE) standard—this time, for light-duty trucks
(model years 2008-2011)102—and in both cases, the agency did no EIS. Petitioners include 11
states (CA, CT, ME, MA, NJ, NM, NY, OR, RI, VT, MN) and four environmental groups. In
sharp contrast with earlier NEPA/climate-change decisions, the United States in this case did not
contest standing and the court decision does not mention it.
On the merits, the court held that NHTSA’s environmental assessment for its CAFE rule, finding
no significant impact, was inadequate owing to, among other things, its analysis of the rule’s
cumulative impacts from GHG emissions. Said the court: “The impact of greenhouse gas
emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA
requires agencies to conduct.”103 Nor did the Energy Policy and Conservation Act, the statute
authorizing CAFE standards, limit NHTSA’s duty to assess environmental impacts such as
climate change. More specifically, while NHTSA’s assessment indicated the expected amount of
CO2 emitted by light-duty trucks under the new CAFE standard, it failed to “evaluate the
‘incremental impact’ that these emissions will have on climate change ... in light of other past,
present, and reasonably foreseeable actions such as other light truck and passenger automobile
CAFE standards.”104 Finally, the court invoked the well-settled principle that an EIS must be
prepared if substantial questions are raised as to whether a proposed project may have significant
environmental impact, and held that petitioners’ evidence raised the necessary level of doubt.
Thus, the court ordered preparation of a full EIS. (There was also a climate change-related Energy
Policy and Conservation Act claim, discussed in Section III.)
In Center for Biological Diversity v. Kempthorne, No. 3:07-CV-0141 (D. Alaska), transferred
from No. 07-CV-00894 (N.D. Cal. filed February 13, 2007), environmental groups challenge a
Fish and Wildlife Service “incidental taking” rule. As described in Section II, the rule authorizes
the incidental take of polar bears and Pacific walrus by oil and gas activities in the Beaufort Sea
and adjacent coastal areas of the Alaska north slope, from 2006 to 2011.105 Plaintiffs challenge the
100 An organization has standing to bring suit on behalf of its members when “(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt
v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
101 260 F. Supp. 2d at 1028.
102 71 Fed. Reg. 17,566 (April 6, 2006).
103 508 F.3d at 550.
104 Id.
105 71 Fed. Reg. 43,926 (August 2, 2006).
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environmental assessment and finding of no significant impact, charging that the Service put out
the rule “without seriously analyzing the effects of climate change on them or their habitat.” The
accusation is not that the oil and gas activities themselves contribute to climate change, but that
direct harms to polar bears and walruses from those activities will be exacerbated by climate
change impacts on the Arctic that are already stressing those species. In April, 2008, the district
court ruled that the FWS had been reasonable in finding that the impacts of oil and gas activities
in and along the Beaufort Sea, over the next five years, will fall short of NEPA’s “significant”
threshold for requiring environmental assessments. An appeal has been filed.
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In Mid States Coalition for Progress v. Surface Transportation Bd., 345 F.3d 520 (8th Cir. 2003),
petitioners disputed the adequacy of an EIS prepared by the Surface Transportation Board to
accompany its approval of a railroad’s proposal to construct new rail and upgrade existing rail.
The proposed rail line was to provide a less expensive route by which low-sulfur coal in
Wyoming’s Powder River Basin could reach powerplants, and thus might be expected to increase
coal consumption and its attendant effects. In this regard, the court noted that CEQ’s NEPA
regulations require that EISs cover both direct and indirect effects of proposed actions.106 It
concluded by finding it “irresponsible” for the Board to approve such a large project without first
examining the possible effects of an increase in coal consumption—apparently, the opinion
suggests (but does not explicitly say), including climate change.107
In Ranchers Cattlemen Action Legal Fund v. Conner, No. 07-CV-01023 (D.S.D. filed October 24,
2007), plaintiffs challenge Department of Agriculture regulations easing restrictions on the import
of live cattle and edible bovine products from “minimal risk” Mad Cow Disease regions
(Canada). Plaintiffs assert that the environmental assessment was inadequate because it did not
analyze the increased GHG emissions from the transportation of the cattle into the United States.
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A few GHG-related suits also have been filed under state “little NEPAs”—state laws requiring
state (and sometimes local) agencies to consider the environmental impacts of their proposed
actions, just as the federal NEPA does for federal agencies.108 For example, in General Motors
Corp. v. California Air Resources Bd., No. 05-02787 (Cal. Sup. Ct. filed September 2, 2005), two
car manufacturers claimed that the Board’s adoption of California’s GHG emission standards
involved delayed and inadequate compliance with the state’s NEPA-type law. This suit offers as a
prime reason for environmental analysis the argument that GHG emissions regulation has, in
addition to a possible benefit, some environmental downsides. In particular, it contends that
restriction of GHG emissions may cause an increase in new-vehicle sticker prices and a
consequent decrease in the rate at which old, higher-emissions vehicles are retired from use.
Invoking California’s NEPA-like statute (the California Environmental Quality Act), conservation
groups and California attorney general Jerry Brown sued in 2007 to require San Bernardino
County, the largest county in the US by area, to address climate change in its General Plan
106 40 C.F.R. § 1508.8.
107 See 345 F.3d at 550.
108 See Dave Owen, Climate Change and Environmental Assessment Law, 33 Colum. J. Env’l L. 57 (2008).
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update.109 Later that year, California settled its lawsuit, the county agreeing to prepare a
Greenhouse Gas Emissions Reduction Plan and adopt other measures.110 Later, the conservation
groups took a voluntary dismissal of their suit after extracting promises from the county to do a
mapping of wildlife habitat and research on wildfire dangers. In broaching the vast realm of local
land use plans, these cases portend a major new front in climate change litigation, particularly in
states that require environmental impact analysis.
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The Global Change Research Act of 1990 (GCRA)111 commands the President to create an
interagency United States Global Change Research Program to improve understanding of “global
change.” Global change is defined broadly by the GCRA to include all changes in the global
environment “that may alter the capacity of the Earth to sustain life.” Thus, the statute includes,
but goes beyond, climate change.112 The Program is to be implemented by a National Global
Change Research Plan, with regular scientific assessments that evaluate the findings of the
Program. The GCRA demands that revised Research Plans be submitted to the Congress at least
every three years,113 with the last one having been submitted July, 2003. The statute further
demands that scientific assessments be submitted to the President and Congress not less often
than every four years,114 with the only assessment to date submitted October, 2000.
On these undisputed facts, the district court in Center for Biological Diversity v. Brennan, 571 F.
Supp. 2d 1105 (N.D. Cal. 2007), had little difficulty finding that the Bush Administration had
unlawfully withheld action it was required to take. It ordered defendants to publish a summary of
the revised proposed Research Plan no later than March, 2008, with submission to Congress no
later than 90 days thereafter.115 The court further ordered the scientific assessment to be produced
by May, 2008. It should be noted that the great bulk of this opinion is devoted not to the
foregoing violation and remedy, but to threshold matters: standing (finding procedural rights
injury and informational injury, associational standing, and Administrative Procedure Act
standing) and a motion to intervene by two Members of Congress (denied).
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The Freedom of Information Act (FOIA)116 mandates that documents in the possession of federal
executive branch agencies are to be disclosed to the public upon request, unless covered by a
FOIA exemption.
109 The attorney general lawsuit is State of California v. County of San Bernardino, No. CIV-SS07-00329 (Cal. Super.
Ct. filed April 12, 2007).
110 Confidential Settlement Agreement, available at http://ag.ca.gov/cms_pdfs/press/2007-08-
21_San_Bernardino_settlement_agreement.pdf.
111 15 U.S.C. §§ 2921-2961.
112 See 15 U.S.C. § 2931(a) (congressional findings suggestive of the act’s scope).
113 15 U.S.C. § 2934(a).
114 15 U.S.C. § 2936.
115 The summary was published at 72 Fed. Reg. 73,771 (December 28, 2007).
116 5 U.S.C. § 552.
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In May, 2006, Citizens for Responsibility and Ethics in Washington (CREW) invoked FOIA to
request from the Council on Environmental Quality (CEQ) all of its records relating to the causes
of climate change, from January 20, 2001, to October 26, 2006. Though CEQ produced many
documents, CREW sued under FOIA seeking a court order that CEQ release all records
responsive to its request. Citizens for Responsibility and Ethics in Washington v. Council on
Environmental Quality, No. 1:07CV00365 (D.D.C. filed February 20, 2007). The case has been
stayed while CEQ efforts to comply continue.
This lawsuit parallels allegations at the time that political appointees in the Bush Administration
CEQ edited many of the agency’s reports to minimize the danger and human causes of climate
change. In July, 2006, the House Committee on Government Reform117 requested that CEQ
provide documents and communications relating to the agency’s edits of climate change
materials, its efforts to influence the statements of government scientists, its communications with
federal agencies and nongovernmental parties regarding climate change, and so on. A report
making findings was issued in December, 2007,118 with minority views.119
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The widely diverse injuries predicted from climate change mean that a comparably diverse
spectrum of plaintiffs and defendants could become involved in common law tort litigation based
on such injuries. Possible plaintiffs include property owners (farmers dealing with reduced
rainfall, owners of oceanfront homes dealing with rising sea level or increased storm activity),
nonowner users of natural resources (ski resort operators, commercial fishermen), and state
attorneys general bringing private or public nuisance claims (the former for injury to state-owned
land, the latter on behalf of the state’s citizenry to protect public health and well-being). Possible
defendants include the companies that produce the fossil fuels whose combustion produces GHG
emissions, entities that emit GHGs (chiefly fossil-fuel-fired powerplants, but many other sources
also), and companies that manufacture or market products whose use creates GHG emissions
(chiefly the automakers).120
Several of these potential plaintiff and defendant categories are represented in the five climate-
change-related tort cases known to be filed thus far (four discussed in the following text, one in
footnote 130). Thus far, all of those tort actions that have produced court decisions have failed,
either due to lack of standing or the political question doctrine, or both. Three are on appeal,
however.
117 Renamed the House Committee on Oversight and Government Reform early in the 110th Congress.
118 Political Interference with Climate Change Science Under the Bush Administration, available at
http://oversight.house.gov/documents/20071210101633.pdf.
119 On file with author.
120 This nutshell on possible plaintiffs and defendants is adapted from David Hunter and James Salzman, Negligence in
the Air: The Duty of Care in Climate Change Litigation, 155 U. Pa. L. Rev. 1741, 1750-1752 (2007).
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Nuisance has been the principal tort theory used in cases seeking relief (injunctive or monetary)
from harms caused by climate change.121
In 2004, eight states (CA, CT, IA, NJ, NY, RI, VT, WI) and New York City sued five electric
utility companies.122 Connecticut v. American Electric Power Co., Civ. No. 04 CV 05669
(S.D.N.Y. filed July 21, 2004). These defendants were chosen as allegedly the five largest CO2
emitters in the United States, through their fossil-fuel-fired electric powerplants. Invoking the
federal and state common law of public nuisance,123 plaintiffs seek an injunction requiring
defendants to abate their contribution to the nuisance of climate change by capping CO2
emissions and then reducing them. Plaintiffs sue both on their own behalf to protect state-owned
property (e.g., the hardwood forests of the Adirondack Park in New York), and as parens patriae
on behalf of their citizens and residents to protect public health and well-being.
On the same day, three land trusts filed a similar suit against the same defendants, in the same
court, adding a private nuisance claim.124 Open Space Institute v. American Electric Power Co.,
No. 04 CV 05670 (S.D.N.Y. filed July 21, 2004). They seek to protect land owned and preserved
by them in the state of New York, which they claim to be threatened by climate change.125 This
suit was consolidated with the state suit.
In a series of motions, defendants sought to have these actions dismissed on a wide spectrum of
threshold grounds. Though the case has now been decided by the trial court on a single threshold
issue, it is worth reviewing some of the grounds advanced in these motions because they may
reappear later, in this or other private GHG litigation. To reiterate, many of these grounds typify
the difficulties encountered when one seeks to address through private litigation a ubiquitous,
long-term environmental problem to which countless parties contribute.
In a dismissal motion, some defendants argued there is no federal common law cause of action
for climate change. Creating such federal common law, they argued, runs afoul of Supreme Court
directives that federal courts do so only in limited areas—especially where, as with climate
change, the problem at issue has sweeping implications. Even assuming a viable federal common-
law nuisance theory, they continued, Congress’s enactment of a comprehensive scheme of air
pollution regulation in the CAA displaces federal court authority in this area. Defendants also
121 See generally Thomas W. Merrill, Global Warming as a Public Nuisance, 30 Colum. J. Envtl. L. 293 (2005);
Matthew F. Pawa, Global Warming: The Ultimate Public Nuisance, 39 Envtl. Law Rptr. 10230 (March 2009); Jim
Gitzlaff, Getting Back to Basics: Why Nuisance Claims Are of Limited Value in Shifting the Costs of Climate Change,
39 Envtl. Law Rptr. 10218 (March 2009).
122 American Electric Power Co., Inc., The Southern Co., Cinergy Corp., Tennessee Valley Authority, and Xcel
Energy, Inc.
123 An activity is a public nuisance if it creates an unreasonable interference with a right common to the general public.
Unreasonableness may rest on the fact that the activity significantly interferes with public health and safety, or has
produced a permanent or long-lasting effect and, as the actor knows or has reason to know, has a significant effect on
the public right. RESTATEMENT (SECOND) OF TORTS § 821B (1979).
124 An activity is a private nuisance if it is a nontrespassory invasion of another’s interest in the private use and
enjoyment of land. Id. at § 821D.
125 See Vincent S. Oleskiewicz and Douglas B. Sanders, The Advent of Climate Change Litigation Against Corporate
Defendants, BNA Daily Env’t Rpt. B-1 (November 15, 2004). The authors review the State of Connecticut and Open
Space Institute suits in some detail, assess the defenses available in tort-based climate change suits generally, and
extract clues as to the potential success of such litigation from the history of litigation against tobacco companies.
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challenge plaintiffs’ standing to sue. Plaintiffs, they argued, have not demonstrated the “injury in
fact” requisite of standing because they allege only injuries from climate change in the indefinite
future. Nor, said these defendants, have plaintiffs shown “causation” because they do not allege
that defendants’ conduct will directly cause the consequences of climate change—especially since
defendants’ collective emissions are admitted to be less than 2-1/2% of the global total from
human activities.126 As mentioned, the viability of these federal common law of nuisance and no-
standing arguments by defendants may be significantly affected—the displacement argument
helped, the others hurt—by Massachusetts v. EPA.
Another motion to dismiss asserted that to the limited extent a federal common law claim to abate
an interstate nuisance has been recognized, it has been limited to actions brought by state entities.
Nor, said defendants, can plaintiffs assert public nuisance, because they have not alleged special
injury to their properties, or private nuisance, because they have not alleged substantial harm.
As indicated, the dismissal motions in Connecticut and Open Space Institute have now been ruled
on by the district court,127 which dismissed the cases on political question grounds. This judicial
doctrine requires a court to look into “the appropriateness under our system of government of
attributing finality to the action of the political departments [i.e., the legislative and executive
branches] and also the lack of satisfactory criteria for a judicial determination....”128 One situation
judicially recognized as pointing to a political question, hence dismissal of the action, is “the
impossibility of deciding [the case] without an initial policy determination of a kind clearly for
nonjudicial discretion.”129 This situation, said the court, perfectly fit the GHG cases, touching as
they do on so many areas of national and international policy. As a political question, the court
believed the climate change issue in these suits to be for the legislature, not the courts, to resolve.
Very possibly, the amorphousness of nuisance law, giving the court little guidance in resolving
these cases, may have hurt the plaintiffs’ cause. These cases are now on appeal to the Second
Circuit.130
A second nuisance action was filed in 2006 by California against several automobile
manufacturers based on the alleged contributions of their vehicles to climate change impacts in
the state. The suit asserts that these impacts constitute a public nuisance under federal or state
common law, and seeks monetary damages (plaintiffs in Connecticut seek injunctive relief). The
district court dismissed the suit on the same political-question rationale as in Connecticut—
namely, “the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion.” California v. General Motors Corp., 2007 Westlaw 2726871 (N.D. Cal.
126 An interesting question raised by the Prof. Merrill article, supra note 121, is whether these general standing
requirements, developed in the context of private lawsuits, should apply in a suit such as State of Connecticut—that is,
in a parens patriae suit brought by state attorneys general under public nuisance law.
127 Connecticut v. American Elec. Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
128 Baker v. Carr, 369 U.S. 186, 210 (1962).
129 Id. at 217.
130 Presumably two of the plaintiffs, New York State and New York City, have been able to support their standing to
sue by arguments not contrary to those they made against plaintiff standing in another public-nuisance climate change
case in which they were the defendants. Avoiding contradictory arguments was presumably facilitated by the
idiosyncratic nature of the global-warming harms alleged by the pro se plaintiff—e.g., those based on plaintiff’s
enhanced vulnerability to disease-causing pollution as compared to the general population. According to the court,
plaintiff appeared to be requesting an injunction ordering the defendants to stop polluting and use his invention for
reducing carbon dioxide emissions. Korsinsky v. U.S. EPA, 192 Fed. Appx. 171 (2d Cir. 2006) (affirming district court
dismissal based on lack of standing).
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September 17, 2007). The need for an “initial policy determination” by the political branches was
supported, in the court’s view, by the complexity of the climate change issue, the need for
political guidance in divining what is an “unreasonable” interference with the public’s rights (the
definition of a public nuisance), and the global warming debate in the political branches.
Ironically, the environmental “win” in Massachusetts v. EPA was cited by the court against the
state, both because that decision found authority over GHG emissions to lie with the federal
government and because it recognized a state’s standing to press its grievances at the federal
level. An appeal to the Ninth Circuit is pending.
Most recently, a native village on the northwest Alaska coast sued certain oil and energy
companies, claiming that the large quantities of GHGs they emit collectively contribute to climate
change. Climate change, the village contends, is destroying the village by melting Arctic sea ice
that formerly protected it from winter storms, leading to massive coastal erosion. Native Village
of Kivalina v. Exxonmobil Corp., No. 08-cv-01138 (N.D. Cal. filed February 26, 2008). Indeed,
the complaint asserts, “[t]he U.S. Army Corps of Engineers and U.S. Government Accountability
Office have both concluded that the village must be relocated due to global warming....” The
village invokes the federal common law of public nuisance, and state statutory or common law of
private and public nuisance, and makes a civil conspiracy claim. The conspiracy claim asserts that
some of the defendants have engaged in agreements to participate in the intentional creation or
maintenance of a public nuisance—that is, global warming—by misleading the public as to the
science of global warming. The suit seeks monetary damages.
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Owners of Mississippi property damaged by Hurricane Katrina sued certain oil, coal, and
chemical companies, alleging a multistep chain of causation: the companies emitted GHGs,
which contributed to global warming, which made the waters of the Gulf of Mexico warmer,
which caused Hurricane Katrina to become more intense as it passed over the Gulf than it would
otherwise have been, which increased the harm to plaintiffs’ property caused by the hurricane.
Plaintiffs asserted various state-law tort claims, including negligence, nuisance (public and
private), and trespass, and seek compensatory damages; they request punitive damages for gross
negligence. Further, they claimed fraud and conspiracy to commit fraud, alleging that the oil and
coal companies disseminated misinformation about global warming. Finally, plaintiffs made
claims against their home insurance companies (e.g., breach of fiduciary duty claim for
misrepresenting policy coverage, and violation of a state consumer-protection act) and their
mortgage companies (arguing that they may not claim sums owed by plaintiffs for the value of
the mortgaged property that was uninsured).
The district court, sitting in diversity, dismissed the action for lack of plaintiff standing. Comer v.
Murphy Oil USA, Inc., Civ. Action No. 1:05-CV-436-LG-RHW (S.D. Miss. August 30, 2007).
With regard to certain defendants, the court also found plaintiffs’ claims nonjusticiable under the
political question doctrine—as in the decisions above where nuisance was the sole legal theory
advanced. An appeal to the Fifth Circuit is pending.
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The question of whether federal law preempts state regulation of GHG emissions arises chiefly in
connection with mobile sources. With limited exceptions, the CAA disclaims any intention to
preempt state air pollution controls on stationary sources.131 And the Energy Policy and
Conservation Act does not set fuel economy standards for other than mobile sources, so it too
would be unlikely to preempt state regulation of stationary sources. However, some have asserted
that state regulation of stationary-source GHGs is preempted as contrary to the federal
government’s authority over foreign policy—an argument being pressed, so far unsuccessfully, in
litigation attacking state regulation of mobile-source GHG emissions (see below). The most
prominent state enactment limiting GHG emissions from stationary sources is that of California,
which as yet has not been challenged.132
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The picture is quite different for mobile sources, where preemption is the general rule. The CAA
preempts states from adopting any “standard relating to the control of emissions from new motor
vehicles ...,”133 and the act defines “emission standard” as certain limits on “emissions of air
pollutants.”134 The Supreme Court has now held that at least for purposes of mobile sources, “air
pollutants” includes GHGs. Thus, CAA preemption of state regulation of car and truck GHG
emissions is clear, whether or not EPA proceeds to regulate a particular mobile-source GHG. It
would seem, then, that states are preempted from setting emission standards for CO2, methane,
and hydrofluorocarbons—three substances said to enhance climate change—even though EPA
has not set mobile-source emission standards for them.
An exception to the general CAA rule preempting state mobile-source emission regulation is that
EPA may waive CAA preemption for one particular state, California, if that state requests a
131 CAA § 116, 42 U.S.C. § 7416. The exceptions in this nonpreemption provision say that states may not adopt
emission limitations for stationary sources that are less stringent than those in state implementation plans, new source
performance standards, or national emission standards for hazardous air pollutants.
132 See Global Warming Solutions Act of 2006, A.B. 32, Cal. Health & Safety Code § 38500 et seq. This law requires
that GHG emission limits be in effect in California by 2012 to reduce statewide GHG emissions to the 1990 level by
2020. Note, however, that although A.B. 32 applies chiefly to stationary sources, it provides that if the mobile source
GHG emission limits imposed by an earlier state enactment are struck down, “alternative regulations” to restrict
mobile-source GHG emissions shall be imposed under A.B. 32. As the following paragraphs of the text discuss, this
earlier enactment is now the subject of a preemption challenge.
133 CAA § 209(a), 42 U.S.C. § 7543(a).
134 CAA § 302(k), 42 U.S.C. § 7602(k). Emphasis added.
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waiver.135 Further, when EPA does grant California a waiver, the act automatically extends it to
almost all states with mobile-source emission limits identical to California’s.136
Under this “California waiver” authority, California requested a preemption waiver for its GHG
emissions regulations on December 21, 2005. These regulations had been promulgated under a
2002 California enactment that was the first in the nation to call for limits on GHG emissions
from mobile sources. Assembly Bill 1493137 instructs the California Air Resources Board (CARB)
to adopt regulations that achieve the maximum feasible reduction of GHGs emitted by passenger
vehicles and light-duty trucks. The CARB adopted the required regulations in 2004. The
regulations target CO2, methane, nitrous oxide, and hydrofluorocarbon emissions, setting “fleet
average greenhouse gas exhaust mass emission requirements for passenger car, light-duty truck,
and medium-duty passenger vehicle weight classes.” The first model year to which the fleet
averages apply is 2009. The averages are reduced for each subsequent model year through 2016.
On December 19, 2007, almost two years after California requested the waiver, the EPA
Administrator wrote the California governor that he intended to deny the state’s request. On
January 3, 2008, two petitions for review of this letter, arguing that it constituted final agency
action on the waiver request, were filed in the Ninth Circuit. However, with the issuance of EPA’s
March 6 decision document, 138 these suits based on the EPA letter were dismissed and replaced
by a suit in the D.C. Circuit challenging that document. Petitioners in State of California v. U.S.
EPA, No. 08-1178 (D.C. Cir. filed May 5, 2008) are California, 18 other states, and numerous
environmental groups. Most of the California congressional delegation, including Speaker of the
House Nancy Pelosi and Senators Boxer and Feinstein, are participating as amici in support of the
petitioners.139 With the arrival of President Obama, the California Air Resources Board and
President Obama (by executive order) requested EPA to reopen the waiver-denial matter—which
EPA did on February 12, 2009.140 On February 25, 2009, motion was granted to hold State of
California in abeyance pending the Obama Administration EPA’s reconsideration of California’s
petition.141
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That the CAA preempts state GHG regulation of mobile sources cannot be seriously questioned,
absent a California waiver. The following preemption litigation is significant for the non-CAA
preemption claims being pressed. If successful, these claims would prevent California and other
135 CAA § 209(b), 42 U.S.C. § 7543(b). Under section 209(b), EPA “shall” grant the waiver “if the State determines
that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal
standards.” However, no waiver shall be granted if EPA finds that the state’s determination is arbitrary and capricious,
the state does not need the standards to meet “compelling and extraordinary conditions,” or the state standards and
accompanying enforcement procedures are inconsistent with CAA section 202(a).
136 CAA § 177, 42 U.S.C. § 7507. Section 177 limits its extension of the section 209 waiver to those states that have
approved nonattainment-area plans. This includes all states except North Dakota, South Dakota, and Hawaii.
137 Cal. Heath & Safety Code § 43018.5.
138 73 Fed. Reg. 12,156 (March 6, 2008).
139 See generally CRS Report RL34099, California’s Waiver Request Under the Clean Air Act to Control Greenhouse
Gases From Motor Vehicles, by James E. McCarthy and Robert Meltz.
140 74 Fed. Reg. 7,040 (February 12, 2009).
141 See generally Kristien G. Knapp, The Legality of EPA’s Greenhouse Gas Waiver Denial, 39 Envtl. L. Rptr. 10127
(February 2009).
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states from implementing the California mobile-source standards even if EPA’s denial of the
waiver is administratively or judicially reversed.
The chief non-CAA preemption theory in this litigation is based on the Energy Policy and
Conservation Act (EPCA, also noted in Section III). EPCA is the authority under which the
National Highway Traffic Safety Administration (NHTSA) establishes corporate average fuel
economy standards (“CAFE standards”).142 As recently amended, EPCA requires NHTSA to
prescribe separate fuel economy standards for passenger and non-passenger automobiles
beginning with model year 2011, to achieve a combined fuel economy average for model year
2020 of at least 35 miles per gallon.143 More pertinent here, EPCA preempts states from adopting
laws “related to” the federal fuel economy standards.144 The auto industry argues that the only
known way to reduce GHG emissions is to improve gas mileage, so that a state regulation of auto
GHG emissions is a law “related to” the federal emission standard, hence invalid.
Non-CAA preemption suits, brought by auto interests, are pending in four of the federal judicial
circuits containing a state that has adopted GHG controls on vehicles. Two decisions on the
merits have been handed down, from Vermont (First Circuit) and California (Ninth Circuit). Both
reject the preemption theories presented.
In the first to be decided, Green Mountain Chrysler Plymouth Dodge v. Crombie, 508 F. Supp. 2d
295 (D. Vt. 2007), the court ruled that the relationship between Vermont’s California-identical
GHG standards and EPCA was better analyzed as an interplay between two federal statutes
(EPCA and the CAA) rather than as a federal preemption question. So viewing the matter, the
court pointed out that NHTSA has consistently treated EPA-approved California mobile source
emissions standards as constituting “other motor vehicle standards of the Government,” which
EPCA says NHTSA must consider when setting CAFE standards.145 This suggests that EPCA was
meant to coexist with the CAA, rather than supersede it. Moreover, noted the court, in a related
context the Supreme Court’s Massachusetts v. EPA decision saw the EPCA CAFE provisions as
harmonious with the CAA.146 Thus, the court found the relationship between the CAA waiver
authority and the EPCA CAFE provisions to be one of overlap, but not conflict. Despite its
conclusion that preemption doctrine did not apply, the court did a preemption analysis anyway,
finding that Vermont’s GHG standards were preempted neither by EPCA nor as an intrusion upon
the foreign policy authority of the United States. An appeal is pending.
In the second decision, Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151
(E.D. Cal. 2007), a district court similarly rejected claims that California’s regulation of GHG
emissions from cars and trucks was precluded by EPCA, preempted by EPCA, or preempted as
an intrusion of state law on federal authority to conduct foreign affairs. An appeal in this case is
pending as well.
The legal theories pressed in the Crombie and Goldstene litigation are similar to those in two
Rhode Island suits, consolidated as Lincoln Dodge, Inc. v. Sullivan, No. 1:06-CV-00070 (D.R.I.
filed February 13, 2006), challenging that state’s adoption of the California standards. Recently,
the district court held that the claims of the auto manufacturers and trade associations in this case
142 EPCA’s fuel economy provisions are at 49 U.S.C. §§ 32901-32919.
143 Id. at § 32902(b)(2)(A).
144 Id. at § 32919.
145 Id. at § 32902(f).
146 549 U.S. at 532.
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were barred by collateral estoppel, a legal doctrine that prohibits parties from relitigating issues
they have already adjudicated, as these plaintiffs had done in Crombie and Goldstene. The Rhode
Island auto dealers, by contrast, had themselves never raised the issues in the case and thus were
held to be viable plaintiffs, allowing the case to proceed. In yet another preemption case, New
Mexico’s adoption of the California GHG standards has been challenged as preempted under
EPCA in Zangara Dodge, Inc. v. Curry, No. 1:07-CV-01305 (D.N.M. filed December 27, 2007).
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The first climate-change decision involving state statutes (other than nuisance statutes) appears to
be Matter of Quantification of Environmental Costs, 578 N.W.2d 794 (Minn. App. 1998). This
case involved a state law requiring the state’s public utilities commission to determine
environmental cost values for each method of energy generation, and to use those values in
proceedings before the commission. The commission set values for six pollutants, including CO2.
Petitioners’ challenge to the CO2 value was rejected on the grounds that (a) notwithstanding the
speculative nature of some of the data, the ALJ conducted a careful review based on sufficient
evidence in the record, (b) the determination that CO2 negatively affects the environment was
proper,147 and (c) the determination as to CO2 value otherwise comported with the governing
statute.
In 2000, the City of Seattle adopted a goal of meeting its electricity needs with “no net
greenhouse gas emissions.” To achieve this goal, the city ordered the city-owned electric utility to
offset its GHG emissions by paying others to reduce their GHG emissions. The utility did so,
largely through agreements paying other entities to use cleaner fuels. This made the utility
(according to its press release) “the first large electric utility in the country to effectively
eliminate its contribution of harmful greenhouse gas emissions.” In Okeson v. City of Seattle, 150
P.3d 556 (Wash. 2007) (en banc), however, the utility’s ratepayers argued that this offset
arrangement was not authorized by the state’s utility enabling act. The Washington Supreme
Court agreed, explaining that the purchase of GHG offsets was not impliedly authorized by the
enabling act in that the offset contracts were not proprietary because they were not part of the
services for which ratepayers are billed, nor were they within the enabling act’s purposes.
A pair of cases deals with permit applications by electric utilities seeking to build new facilities.
In In re Otter Tail Power Co., 744 N.W.2d 594 (S.D. 2008), environmental intervenors urged the
South Dakota public utilities commission to deny a permit to build a coal-fired energy conversion
facility, in light of the substantial CO2 it would emit. Notwithstanding, the commission granted
the permit, and the state supreme court sustained. The commission, it held, was not clearly
erroneous in finding that the added CO2 threatened no “serious” injury to the environment, the
state’s statutory standard. Deference to the commission was particularly appropriate, it said,
because the CO2 from the facility would increase national CO2 emissions by only .07%, and
neither Congress nor the state had chosen to regulate CO2 emissions.
By contrast, the permit was ultimately denied in Kansas. After applying for a PSD construction
permit148 for two 700-megawatt coal-fired power plants, the Sunflower Electric Power Corp.
initially received a favorable response from the state agency, which asserted it would not consider
147 The court made clear its discomfort in second-guessing the ALJ on a scientific matter unfamiliar to the court.
148 See supra note 26.
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CO2 in connection with the application owing to the national and international character of
climate change. Later, however, the agency invoked a state law providing it with emergency
powers when emissions present a substantial endangerment to the health of persons or the
environment.149 Using this authority, and specifically citing the large volume of CO2 from the
proposed plants, the agency denied the permit in 2007. Three times in 2008 and once in 2009 the
Kansas legislature passed laws that would have required Sunflower’s application to be evaluated
without taking CO2 emissions into account, but each was vetoed by Governor Sebelius. In
response to the 2008 vetoes, Sunflower filed several suits now pending in state and federal court.
In federal court, in Sunflower Electric Power Corp. v. Sebelius, No. 08-2575 (D. Kan. filed
November 17, 2008), Sunflower alleges first that the permit denial violates equal protection
because it prohibits CO2 emissions from the proposed plants when the state has authorized, and
continues to authorize, other CO2 sources in Kansas. Second, Sunflower claims a violation of the
Dormant Commerce Clause150 in that the permit denial was allegedly motivated by the fact that
much of the electricity to be generated by the proposed plants would be sold out of state.
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Research reveals only one lawsuit contesting insurance policy coverage of injuries or liability
arising from climate change, though the future is likely to see more. One of the energy companies
sued in tort by the Village of Kivalina (see Section V) is now being sued by the insurance
company holding its commercial general liability policy. Steadfast Insurance Co. v. The AES
Corporation, No. 2008-858 (Va. County Ct. filed July 9, 2008). The insurance company seeks a
declaratory judgment that, it hopes, will decree it is not obligated under the policy to provide
either defense or indemnity coverage to the energy company in the litigation brought by the
Village of Kivalina. The insurer’s arguments are three: (1) the policy applies only to an
“accident,” which is not the basis of the suit against the energy company by the Kivalina
plaintiffs; (2) the policies do not apply to injury that began before the earliest of the insurance
policies (September 2003), which the injuries here did; and (3) all of the conditions for avoiding
the policy’s pollution exclusion have not been met (e.g., the pollution alleged by the Kivalina
complaint was not unexpected).
More significant than the coverage of current liability and casualty policies is the long-term
challenge posed by climate change to the insurance industry.151
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Reports suggest that the successor to the Kyoto Protocol may contain provisions by which
wealthy industrialized nations contribute to the adaptation costs of developing countries affected
by climate change. Lurking in the background, however, is the question whether the major GHG
emitting nations can be sued in international fora for the adverse effects of climate change.
149 Kansas Stat. Ann. § 65-3012.
150 The “Dormant Commerce Clause” is a judicially created corollary of the Commerce Clause in Art. I, section 8 of the
U.S. Constitution. It asserts that states may not impose undue burdens on interstate commerce.
151 See, e.g., Sean B. Hecht, Climate Change and the Transformation of Risk,: Insurance Matters, 55 UCLA L. Rev.
1559 (2008); Justin Pidot, Georgetown Environmental Law and Policy Inst., COASTAL DISASTER INSURANCE IN THE ERA
OF GLOBAL WARMING,: THE CASE FOR RELYING ON THE PRIVATE MARKET (2007).
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Gauging the viability of such claims involves a good deal of guesswork, as they lie on the
frontiers of international law. This report, concerned primarily with actually filed claims, notes
only a few highlights, taken mostly from what appears to be the most pertinent article in the
area.152 The article suggests that the International Court of Justice (ICJ) might be one forum for
resolution of climate change claims, with jurisdiction established through treaties that specifically
provide for dispute resolution before the court. A problem with the ICJ approach is that the
treaties most likely to be invoked are Friendship, Commerce, and Navigation or similar treaties,
which focus on how each party within its own country treats the other country’s nationals and
property. A climate change suit, by contrast, likely would have an extraterritorial focus. Another
ICJ possibility would be for the court to render an advisory opinion, at the request of a body
authorized under the U.N. Charter to request one.
Other possibilities include voluntary submission of a climate change dispute to any of several
international arbitral forums or resort to the specialized dispute resolution systems created under
various treaties. An example of the latter, reportedly being actively considered, is a fisheries
conservation agreement under the UN Law of the Sea Convention, presumably on the argument
that increased ocean temperatures from climate change imperil certain fish stocks.153
Some principles that might be applied to a claim alleging GHG-caused injury might be taken
from the international law of transboundary pollution. For example, the Restatement (Third) of
Foreign Relations Law describes an international law principle under which a nation must “take
such measures as may be necessary, to the extent practicable under the circumstances, to ensure
that activities within its jurisdiction or control ... are conducted so as not to cause significant
injury to the environment of another state....”154 Similarly, the Trail Smelter arbitration decision,
probably the seminal ruling on state liability for transboundary pollution, declared that “[a] State
owes at all times a duty to protect other States against injurious acts by individuals from within its
jurisdiction.”155 Of course, as with the domestic common law litigation described in Section V,
daunting hurdles confront the claimant in making the link between climate change in general and
specific environmental harms, and in apportioning how much of such harms are attributable to the
charged party or parties, in this instance the United States.
Research reveals only one climate-change-related international law action filed against the United
States. Not surprisingly, it was filed by a group based in the Arctic, where the temperature rise
from climate change has been among the fastest. In 2005, the Chair of the Inuit Circumpolar
Conference, on behalf of herself and all affected Inuit of the arctic regions of the United States
and Canada, filed a petition against the United States with the Inter-American Commission on
Human Rights, the investigative arm of the Organization of American States (OAS).156 The
152 Andrew L. Strauss, The Legal Option: Suing the United States in International Forums for Global Warming
Emissions, 33 Envtl. L. Rptr. 10185 (2003).
153 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks, 34 Int’l Legal Materials 1547. The United States is a party to this agreement and, by reference to the Law of the
Sea Convention, it incorporates binding dispute-resolution mechanisms.
154 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 601(1). See also Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 ICJ Reports 226, 241-242 (July 8, 1996) (“the existence of the general obligation of
states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas
beyond national control is now part of the corpus of international law relating to the environment”).
155 Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1938, 1965 (March 11, 1941).
156 For an eight-page summary of the 176-page petition, go to http://earthjustice.org/library/legal_docs/summary-of-
inuit-petition-to-inter-american-council-on-human-rights.pdf.
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petition alleged that the United States, through its failure to restrict its GHG emissions and the
resultant climate change, has violated the Inuit’s human rights—including their rights to their
culture, to property, to the preservation of health, life, and physical integrity, and so on.157 Inuit
culture is described in the petition as “inseparable from the condition of [its] physical
surroundings.” Generally, the Inter-American Commission on Human Rights is empowered to
recommend measures that contribute to human rights protection, request states in urgent cases to
adopt specific precautionary measures to avoid serious harm to human rights, or submit cases to
the Inter-American Court of Human Rights. The United States, however, has not accepted the
jurisdiction of this court, so the Inuit petition sought only to have the Commission prepare a
report declaring the responsibilities of the United States and recommending corrective measures.
In 2006, the Inuit petition was rejected, with no reasons given (as is customary for the
Commission). However, at the request of petitioners the Commission held a hearing on March 1,
2007 on the generic issue of climate change and human rights. One may speculate that the
Commission felt more comfortable with the hearing format than the petition because the former
did not single out the United States. Or that the Commission was concerned the petition took it
into a realm of global scale, orders of magnitude vaster than the typical human rights petition it
receives.
In 2005-2006, five petitions were submitted to the Intergovernmental Committee for the
Protection of the Cultural and Natural Heritage of Outstanding Universal Value (World Heritage
Committee), part of UNESCO.158 The petitions request that various designated World Heritage
Sites be placed on the List of World Heritage in Danger159 owing to alleged impacts of climate
change. The sites covered by the petitions are Waterton-Glacier International Peace Park
(U.S./Canada), Sagarmatha National Park (Nepal), Belize Barrier Reef Reserve System (Belize),
Huascaran National Park (Peru), and the Great Barrier Reef (Australia). Only the Waterton-
Glacier petition was filed by entities within the United States (12 environmental groups) and
involves a natural resource within the United States. As a party to the World Heritage Convention,
the United States is obligated to “do all it can ... to the utmost of its own resources and, where
appropriate, with any international assistance and cooperation” to protect its cultural and natural
heritage.160
In 2006, the World Heritage Committee acknowledged the five petitions but appeared desirous of
shifting the debate toward the use of existing committee mechanisms at individual sites to adapt
to the threat of climate change.161 Since then, a few additional petitions to place sites on the
danger list have been filed, most interestingly a petition titled “The Role of Black Carbon in
Endangering Sites Threatened by Glacial Melt and Sea Level Rise.”162 This petition notes that
“[r]ecent scientific studies identify black carbon, a component of fine particulate matter, as a key
climate forcing agent….”163 It then asserts that high latitude and high altitude glaciers and low-
157 See generally Sara C. Aminzadeh, Note, A Moral Imperative: The Human Rights Implications of Climate Change,
30 Hastings Int’l & Comp. L. Rev. 231 (2007).
158 Convention Concerning the Protection of the World Cultural and Natural Heritage, art. 8, signed November 23,
1972, entered into force December 17, 1975, 27 U.S.T. 37.
159 Id. at art.11, par. 4.
160 Id. at art. 4.
161 World Heritage Comm. Decision 30 COM 7.1, adopted July 10, 2006, available at http://law.lclark.edu/org/
ielp/glacierpetition.html.
162 Filed January 29, 2009, by Earthjustice and the Australian Climate Change Program.
163 Petition at 1.
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elevation sites are the World Heritage Sites most vulnerable to climate change, and lists 15 sites
(including those in the preceding paragraph) that should be placed on the danger list.164 Waterton-
Glacier remains the only site mentioned in a petition for placement on the List of World Heritage
in Danger that is in the United States.
Thus far, no international law claims have been brought by low-lying nations likely to be
inundated by the sea level rise predicted to accompany climate change. A recent scientific report
asserts that sea level rise is likely to be larger than previously predicted, affecting as many as 600
million people on low-lying Pacific islands and southeast Asia delta areas.165
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Gauging the prospects of the pending climate change lawsuits is a precarious venture; for many
of the suits, there is little precedent. It is clear, however, that success in the conventional sense—
obtaining a judgment for the environmental plaintiff—is not the only objective of many of these
suits. Some of the climate change litigation almost certainly has a long-range strategic purpose—
to keep climate change on the political front burner and make it difficult for government and
GHG emitters to ignore the problem.
In the conventional sense of the term, plaintiffs’ successes have been rare in cases seeking relief
directly from GHG emitters. A court may be reluctant to impose expensive measures to address a
global problem on a defendant that is a proportionately minor contributor (which almost all
defendants are, given the vast number of GHG emitters), using statutory provisions or common
law principles that were not formulated with global problems in mind, against a backdrop of
scientific uncertainty as to the precise consequences (if not the general cause) of climate change.
By contrast, the environmental side recently has scored major wins where governmental remedies
were sought. In a string of 2007 decisions under the Clean Air Act,166 Energy Policy and
Conservation Act of 1975,167 foreign policy authority of the United States,168 and NEPA,169 courts
have shown increased willingness to authorize or require government consideration of climate
change.
As this report shows, standing has been a persistent issue for environmental plaintiffs, though of
late the tide appears to be shifting in their favor. And at least for states, the Supreme Court
decision in Massachusetts v. EPA is likely to work a sea change in improving plaintiffs’ prospects.
As noted earlier, the big question is the extent to which the Supreme Court decision finding
standing will be seen by the lower courts to generalize to nonstate plaintiffs, other statutory and
164 Further, the petition requests that advisory bodies to the World Heritage Convention, State Parties, and site
managers undertake studies on the sources of black carbon that are polluting high latitude and high altitude sites and
recommend measures to reduce such emissions. It then requests the World Heritage Committee to develop a program
of corrective measures.
165 See, e.g., J. Macabrey, Researchers Warn That Sea Levels Will Rise Much Faster Than Expected, ClimateWire
(E&E Publishing March 11, 2009), available at eenews.net/climatewire/2009/03/11/1.
166 Massachusetts v. EPA, 549 U.S. 497 (2007) (see Section I of this report).
167 Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007), and Central Valley
Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007), both described in section VI of this report;
Center for Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508 (9th Cir. 2007),
described in sections III and IV of this report.
168 Green Mountain, supra note 167.
169 Center for Biological Diversity, supra note 167.
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common law contexts, and injuries (as from weather events) not as clearly attributable to climate
change as Massachusetts’s loss of shore land.
Causation is not only a component of the threshold standing test but a component of the
plaintiff’s case on the merits. Several writers have identified proof of causation as a key obstacle
to a tort action seeking relief from climate change injury.170 And at the remedy stage, allocation of
damages among specific defendants will likely present both factual and legal challenges.
In either the standing or case-in-chief contexts, the climate change issues in private-remedy
actions reprise an intractable problem in environmental law: imposing liability for harms that are
remote in time and place from the pollution sought to be abated, particularly where the pollution
comes from multiple sources.171 Lawmakers of yesteryear encountered this same redistributive
conundrum in tackling the problem of acid rain, where pollution cause and effect are separated by
hundreds of miles and weeks or months. Imposing liability for harm from exposure to toxic
chemicals is of the same ilk: exposure to contamination from multiple sources may result in ill
effects manifested only a decade or two later.
Perhaps because of these hurdles under existing law, and the resistance of the George W. Bush
Administration to regulatory approaches to climate change, new directions have been explored.172
Within the United States, several states have adopted their own GHG emission controls, citing,
among other things, inaction at the federal level.173 Twenty-three states have joined one of the
three regional GHG reduction initiatives (Western Climate Initiative, Midwestern Regional
Greenhouse Gas Reduction Accord, and in the northeastern states, Regional Greenhouse Gas
Initiative).174 Some states have explored the idea of emissions trading with Europe.175 At least 40
states and multiple Canadian provinces have partnered to form a Climate Registry to support
voluntary and mandatory schemes for reporting GHG emissions in those states and provinces.
California and the United Kingdom signed an agreement on July 31, 2006, committing both
parties to implement market-based mechanisms, to share results from studies to quantify the
economic impacts of climate change, collaborate on research, etc.176 Also internationally, this
report noted the unsuccessful Inuit petition filed with the Inter-American Commission on Human
Rights and the pending petitions before the World Heritage Committee. Reportedly, the low-lying
Pacific nation of Tuvalu threatened to sue the United States and Australia four years ago in the
170 Myles R. Allen and Richard Lord, The Blame Game: Who Will Pay for the Damaging Consequences of Climate
Change?, 432 Nature 551 (December 2004); David A Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based
Climate Change Litigation, 28 Colum. J. Envtl. L. 1 (2003): Eduardo M. Penalver, Acts of God or Toxic Torts?
Applying Tort Principles to the Problem of Climate Change, 38 Nat. Res. J. 563, 569 (1998).
171 See generally Richard J. Lazarus, THE MAKING OF ENVIRONMENTAL LAW ch. 1 (2004).
172 See, e.g., Kristin Marburg, Combating the Impacts of Global Warming: A Novel Legal Strategy, 2001 Colo. J. Int’l
L. & Pol’y 171 (2001).
173 See, e.g., California’s A.B. 32, the Global Warming Solutions Act of 2006, supra note 132. See generally CRS
Report RL33812, Climate Change: Action by States to Address Greenhouse Gas Emissions, by Jonathan L. Ramseur.
174 For example, RGGI is an initiative involving 10 northeastern states to stabilize CO2 emissions from power plants at
188 million tons per year from 2009-2014 and then to reduce emissions by 2.5% per year over the next four years.
175 Congressional Green Sheets Newsroom, December 17, 2004. The same source reports that Rep. Joe Barton (R-
Texas), then-chairman of the House Energy and Commerce Committee, said that any international compact involving
state governments would have to be approved by Congress and that “we would tend to look at it with a lot of
skepticism.” Kenneth Colburn, who is helping to coordinate the states’ effort, was said to question the need for federal
authorization, on the theory that any transatlantic trades would be commercial transactions, not government-to-
government.
176 United Kingdom and California Announcement on Climate Change and Clean Energy Collaboration.
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ICJ, but held off for unspecified reasons.177 In the corporate world, use of the shareholder
proposal process and SEC disclosure requirements have been suggested as ways of forcing the
issue.178
New categories of litigation also may emerge. For example, the head of the California Air
Resources Board has predicted a court challenge to her state’s cap-and-trade system to regulate
GHGs (expected to take effect in 2012). Such a challenge, she said, might argue that the cap-and-
trade system’s fee on GHG emissions imposes a new tax, which requires a 2/3 vote of the state
legislature. As another example, rising sea levels may prompt lawsuits seeking a judicial blessing
for the landward migration of the public’s beach access rights.179 And of course, any climate
change legislation enacted by Congress is likely to spawn its own generation of litigation.180
Whether these new paths will yield results, only time will tell. It is clear, however, that if there is
to be a government response to climate change at all, a solution from the political branches is
more likely to be comprehensive and fully reflective of societal priorities than the typically
narrowly targeted results of litigation. Many proponents of litigation or unilateral action by the
states freely concede that such initiatives are make-do efforts that, while making a small
contribution to mitigating climate change, are also aimed at prodding the national government to
act.
177 See http://www.tuvaluislands.com. Tuvalu alleged that Australia is the biggest per capita producer of GHGs, and
that the United States is the biggest single emitter. See also Aurelie Lopez, The Protection of Environmentally
Displaced Persons in International Law, 37 Envtl. L. 365, 372-373 (2007). Residents of the Alaskan village of
Shishmaref on the Bering Strait, who are now being relocated, are apparently the first American climate change
refugees.
178 See, e.g., Sung Ho (Danny) Choi, Note, It’s Getting Hot in Here: The SEC’s Regulation of Climate Change
Shareholder Proposals Under the Ordinary Business Exception, 17 Duke Envtl. L. & Pol’y Forum 165 (2006);
California Public Employees’ Retirement System et al., Petition for interpretive guidance on climate change
disclosure, SEC No. 4-547 (submitted September 18, 2007); Free Enterprise Action Fund, Petition for interpretive
guidance under the Securities Act of 1933 that would require registrants to disclose to shareholders the business risks
of laws and regulations intended to address global warming concerns, SEC No. 4-549 (submitted October 22, 2007).
179 See, e.g., Severance v. Patterson, 485 F. Supp. 2d 793, 804 (S.D. Tex. 2007) (finding no property rights taking based
on state’s migrating easement allowing public access to the dry beach between mean high tide line and natural
vegetation line, notwithstanding that these lines move).
180 The just-released discussion draft of the Waxman-Markey energy/climate-change bill, titled the American Clean
Energy and Security Act of 2009, expands the existing citizen suit provision in the Clean Air Act to facilitate suits
based on climate change (currently, draft bill section 336). The amendments are geared toward lowering the barriers to
standing often encountered by climate change plaintiffs—the barriers that were lowered in Massachusetts v. EPA in the
special circumstance where the citizen plaintiff is a state. Thus, the draft provision states that persons entitled to file
citizen suits include those who suffer, or reasonably expect to suffer, “the incremental exacerbation of any effect or risk
that is associated with a small incremental emission of any air pollutant (including any greenhouse gas …), whether or
not the effect or risk is widely shared.”
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Robert Meltz
Legislative Attorney
rmeltz@crs.loc.gov, 7-7891
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