Global Warming Litigation: Global Warming Litigation: Just a Bunch of Hot Air?Just a Bunch of Hot Air?

Michael D. FreemanMichael D. Freeman

August 7, 2008August 7, 2008

2008 Annual AWMA Meeting2008 Annual AWMA Meeting Biloxi, MississippiBiloxi, Mississippi

Headlines

Climate Change Litigation?Climate Change Litigation?• Force Government ActionForce Government Action

– Massachusetts v. EPAMassachusetts v. EPA– Center for Biological Diversity v. Kempthorne Center for Biological Diversity v. Kempthorne

• Stop Government ActionStop Government Action– Friends of the Chattahoochee v. Georgia Department Friends of the Chattahoochee v. Georgia Department

of Natural Resourcesof Natural Resources– In re Deseret Power Electric Coop In re Deseret Power Electric Coop

• Regulate or Punish Private ConductRegulate or Punish Private Conduct– Connecticut v. AEP, et alConnecticut v. AEP, et al– California v. GMCalifornia v. GM– Comer v. Murphy OilComer v. Murphy Oil– Village of Kivalina v. ExxonMobilVillage of Kivalina v. ExxonMobil

Force Government ActionForce Government Action

• Mass v. EPAMass v. EPA (April 2, 2007) (April 2, 2007)

– COCO22 is an “air pollutant” under CAA is an “air pollutant” under CAA

– EPA must set standards for car emissions if EPA must set standards for car emissions if they endanger public health or welfarethey endanger public health or welfare

– Remanded to EPA to make endangerment Remanded to EPA to make endangerment findingfinding

Force Government ActionForce Government Action

• Center for Biological Diversity v. Center for Biological Diversity v. KempthorneKempthorne

– Suit to force U.S. Fish & Wildlife Service to list Suit to force U.S. Fish & Wildlife Service to list polar bear polar bear

– Polar bear listed asPolar bear listed as

threatened, not endangeredthreatened, not endangered

Stop Government ActionStop Government Action

• Friends of the Chattahoochee v. Georgia Friends of the Chattahoochee v. Georgia Department of Natural ResourcesDepartment of Natural Resources

– Georgia State Court Judge Thelma Wyatt Cummings Georgia State Court Judge Thelma Wyatt Cummings Moore overruled state’s issuance of a PSD permit to Moore overruled state’s issuance of a PSD permit to construct 1200 MW coal-fired power plant.construct 1200 MW coal-fired power plant.

– PSD permits must contain "CO2 emission limitations PSD permits must contain "CO2 emission limitations based on BACT" because, "there is no question that based on BACT" because, "there is no question that CO2 is 'subject to regulation under the [Clean Air Act].'“CO2 is 'subject to regulation under the [Clean Air Act].'“

– BACT for a "fossil fuel fired steam electric plant" must BACT for a "fossil fuel fired steam electric plant" must include an analysis of alternative technologies include an analysis of alternative technologies

Stop Government ActionStop Government Action

• In re Deseret Power Electric CoopIn re Deseret Power Electric Coop

– EPA Region 8 issues PSD for waste-coal-fired EPA Region 8 issues PSD for waste-coal-fired generating unit in Bonanza, Utahgenerating unit in Bonanza, Utah

– Sierra Club challenges permit before EPA’s Sierra Club challenges permit before EPA’s Environmental Appeals BoardEnvironmental Appeals Board

– Argues Region 8 erred by failing to (1) require Argues Region 8 erred by failing to (1) require BACT for CO2 and (2) consider alternatives.BACT for CO2 and (2) consider alternatives.

Regulate or Punish Private ConductRegulate or Punish Private Conduct

• Connecticut v. AEPConnecticut v. AEP

– Suit by New York, Connecticut, et al against Suit by New York, Connecticut, et al against five major U.S. electric utilitiesfive major U.S. electric utilities

– Charges utilities with contributing to the public Charges utilities with contributing to the public nuisance of global warmingnuisance of global warming

– Seeks order capping emissionsSeeks order capping emissions– Dismissed in 2005 as a political questionDismissed in 2005 as a political question– Appealed and argued in the 2Appealed and argued in the 2ndnd Circuit Circuit

““The Framers based our Constitution on the idea that a separation The Framers based our Constitution on the idea that a separation of powers enables a system of checks and balances, allowing our of powers enables a system of checks and balances, allowing our nation to thrive under a Legislature and Executive that are nation to thrive under a Legislature and Executive that are accountable to the People, subject to judicial review by and accountable to the People, subject to judicial review by and independent Judiciary. Cases presenting political questions are independent Judiciary. Cases presenting political questions are consigned to the political branches . . . not to the Judiciary, and the consigned to the political branches . . . not to the Judiciary, and the Judiciary is without power to resolve them. This is one of those Judiciary is without power to resolve them. This is one of those cases. cases.

[T]he issues presented here require identification and balancing of [T]he issues presented here require identification and balancing of economic, environmental, foreign policy, and national security economic, environmental, foreign policy, and national security interests, ‘an initial policy determination of a kind clearly for interests, ‘an initial policy determination of a kind clearly for nonjudicial discretion’ is required. Indeed, the questions presented nonjudicial discretion’ is required. Indeed, the questions presented here ‘uniquely demand single voiced statement of the here ‘uniquely demand single voiced statement of the Government’s views.’ Thus, these actions present non-justiciable Government’s views.’ Thus, these actions present non-justiciable political questions that are consigned to the political branches, not political questions that are consigned to the political branches, not the Judiciary.” the Judiciary.”

Honorable Loretta A. PreskaHonorable Loretta A. PreskaU.S.D.C. for the Southern District of New YorkU.S.D.C. for the Southern District of New York

Connecticut v. AEPConnecticut v. AEP, 406 F. Supp.2d 265 (S.D.N.Y. 2005), 406 F. Supp.2d 265 (S.D.N.Y. 2005)

•

Regulate or Punish Private ConductRegulate or Punish Private Conduct

• California v. General MotorsCalifornia v. General Motors

– CA AG sued auto industry seeking to hold them liable CA AG sued auto industry seeking to hold them liable for damages from tailpipe emissionsfor damages from tailpipe emissions

– Court dismissed concluding it was up to Congress to Court dismissed concluding it was up to Congress to deal with the issuedeal with the issue

– On appeal to Ninth CircuitOn appeal to Ninth Circuit

Regulate or Punish Private ConductRegulate or Punish Private Conduct

• Comer v. Murphy Oil,Comer v. Murphy Oil, et al et al

– Class action on behalf of Mississippi residents Class action on behalf of Mississippi residents against oil, coal, utility, and chemical companiesagainst oil, coal, utility, and chemical companies

– Claim industries emissions of GHGs contributed Claim industries emissions of GHGs contributed to global warming, which contributed to Hurricane to global warming, which contributed to Hurricane Katrina’s creation and intensity Katrina’s creation and intensity

““While the plaintiffs argue that this case is not . . . about global While the plaintiffs argue that this case is not . . . about global warming, it really is. . . . It is an important debate, but it is a warming, it really is. . . . It is an important debate, but it is a debate which simply has no place in the court, until such time debate which simply has no place in the court, until such time as Congress enacts legislation which sets appropriate as Congress enacts legislation which sets appropriate standards by which this Court can measure conduct, whether it standards by which this Court can measure conduct, whether it be reasonable or unreasonable, and, more important, develops be reasonable or unreasonable, and, more important, develops standards by which a group of people, we call them juries, can standards by which a group of people, we call them juries, can adjudicate facts and apply the law . . . adjudicate facts and apply the law . . .

It is clear from the complaint and clear from the arguments here It is clear from the complaint and clear from the arguments here today that what you are asking this Court to do is . . . to balance today that what you are asking this Court to do is . . . to balance economic, environmental, foreign policy, and national security economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind interests and make an initial policy determination of a kind which is clearly non-judicial. . . . These policy decisions are best which is clearly non-judicial. . . . These policy decisions are best left to the executive and to the legislative branches of the left to the executive and to the legislative branches of the government, who are not only in the best position to make government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.” those decisions but are constitutionally empowered to do so.”

Honorable Louis Guirola, Jr.Honorable Louis Guirola, Jr.U.S.D.C for the Southern District of MSU.S.D.C for the Southern District of MSComer v. Murphy Oil, et alComer v. Murphy Oil, et al

BeforeBefore AfterAfter

BeforeBefore AfterAfter

Balch & Bingham’sBalch & Bingham’s Gulfport Office Gulfport Office

Regulate or Punish Private ConductRegulate or Punish Private Conduct

• Kivalina v. ExxonMobilKivalina v. ExxonMobil

– Plaintiff: Native Village of Kivalina, AlaskaPlaintiff: Native Village of Kivalina, Alaska

– Defendants: 24 of the nation’s largest oil Defendants: 24 of the nation’s largest oil and power companies: ExxonMobil, BP, and power companies: ExxonMobil, BP, AEP, Duke, Southern Company, et al AEP, Duke, Southern Company, et al

– Filed: San Francisco, California Filed: San Francisco, California

– Defendants GHGs have caused Kivalina Defendants GHGs have caused Kivalina to fall into the sea to fall into the sea

Native Village of Native Village of KivalinaKivalina

Michael D. Freeman Michael D. Freeman (205) 226-3432(205) 226-3432

mfreeman@balch.commfreeman@balch.com

Questions?Questions?