A new kind of climate change law?

The role of law and the courts, both in the U.S. and abroad, in addressing climate change is shifting away from a “sector-by-sector” approach to reducing greenhouse gas emissions toward one focused on determining how climate change impacts on people and holding emitters directly responsible, a panel of experts said at the University of Houston Law Center last week.


Tracy Hester, a lecturer at the University of Houston Law Center, kicks off a discussion on climate change law with Clara Poffenberger, left, R0ger Martella and Robert Percival.

The discussion, called “Emerging Theories of Climate Liability and Enforcement,” was hosted by the law school’s Environment, Energy & Natural Resources Center (EENR) on April 22, coinciding both with Earth Day and the formal signing at the United Nations of the December climate agreement in Paris. Tracy Hester, an environmental attorney and lecturer at the UH law school and organizer of its speaker series, moderated the panel.

Roger Martella, co-leader of the environmental practice of the firm Sidley Austin and a former general counsel of the Environmental Protection Agency, said that during what he called the “Climate 1.0” era, the goals of environmental litigation, from both governments and non-governmental agencies, has been primarily focused on limiting greenhouse gas (GHG) emissions by going after entities like coal-powered power plants and other major sectors.

In both the U.S. and across the globe, Martella said, there has been a “theme” of cases and decisions based on a set of principles that indicate where the courts are headed in terms of addressing climate change.

“The first proposition is that the courts feel strongly that the government should be taking action to address climate change. The courts are not going to wait for Congress or political decision-makers to take action. The courts are going to take steps to encourage government – whether it’s a state government, the federal government – to take actions to address climate change,” he said.

Secondly, Martella said, once a governmental agency properly promulgates a regulation to address emissions, the courts are going to be “pretty strict” at enforcing the new rule.

“They’re not going to let people off the hook – as long as the regulations are valid, the courts are going to go ahead and enforce those,” he said. The courts will generally defer to governmental agencies in addressing climate change, he added.

“But if the agency is trying to pursue other goals than addressing climate change, if they’re using climate change as a cloak for addressing other policies, this is where we start to see some rumbles in the road,” he said.

And while the courts generally want to see more government action in addressing climate change, he said, “they’ve been much more cautious, much more careful when it comes to kind of ‘leap-frogging’ regulations and holding the emitters of greenhouse gases directly responsible for climate change.”

Likewise, Martella said, the courts have been very leery about inserting themselves directly into climate change action and serving as “special masters” over corporate entities or other emitters. This is due to core legal questions of “standing,” progressability and causation.

But in the new “Climate 2.0” era, he said, the focus is shifting from using litigation to try to limit greenhouse gas emissions (although that is still happening) to finding the ways climate change is harming people and determining what entities are directly responsible and how they can be held accountable for damages. This approach has been broadly described as “Climate Justice,” he said.

“The goals of the groups that are considering this – public groups, private groups, sometimes government groups – are to seek remedies from whom they consider the historic greenhouse gas emitters,” Martella said. “The approach is different – it’s not a sector by sector approach, it’s a company by company approach. Let’s line up the companies, see who we think is responsible, and try to develop legal remedies against those companies in an opportunity to find them liable.”

Alluding to the recent investigations by the New York Attorney General’s Office into public statements made by energy companies to shareholders that may have contradicted what their own scientific experts had said about the dangers to the climate posed by fossil fuels, Martella said these are not directly related to what he terms the “Climate Justice” theme.

But those investigations are indicative increased scrutiny by various governmental agencies of companies’ histories, from which information is often generated that feeds into the new avenues of legal action, he said.

The idea that has gained some of the most public attention is using RICO-style litigation to go after fossil fuel companies in much the same way that the government went after tobacco companies in the 1990s. But this approach has some significant challenges, Martella said.

Another idea that is being considered is going to shareholders of public energy companies with public disclosures of damaging information.

“There’s increasing pressure among shareholders, in terms of corporate disclosures, in terms addressing the impacts of climate change. That I think is going to generate more information over time which could be used in other avenues. A lot of these efforts are intended to get information, generate information, and then use it in other contexts,” he said.

But perhaps the most important and imminent approach in the U.S., he said, is the use of common law nuisance suits against companies in state courts. Martella said he expected an uptick in these kinds of cases in the next few years.

“This is the area where groups are most focused and most organized. And at the end of the day, I think the issue that’s going to be with us the longest is these common law cases,” he said.

In the international arena, Martella said, groups that are highly engaged in the climate change issue are increasingly using modern communications technology to share research and other information, making their approach truly global.

“The big theme internationally is the Urgenda precedent,” Martella said, referring to a 2015 ruling in which a Dutch court ordered that government to take action to reduce greenhouse gas emissions by at least 25 percent by 2020 compared to the level emitted in 1990.

“Increasingly there are cases around the world (in which) courts are getting more engaged, not only saying we should be doing something to address climate change, but we’re going to give you a sense of what we think you should be doing,” he said. “We’re going to actually give you a goal to reduce greenhouse gases, and we’re going to make sure you implement that goal.”

Martella said that such cases are being filed “in very strategic places” around the world. “So I think we’re going to see the next level of courts giving specific directions in some countries in terms of what the scope of greenhouse gas reductions should be.”

Other examples of “Climate 2.0” include the development of “model statutes” that would address greenhouse gas emissions and compensation for the harmful effects of climate change; and human rights initiatives, such as a pending investigation in the Philippines seeking compensation for damages from typhoons allegedly caused or exacerbated by climate change.

“I think ultimately the courts, despite their deference and their concern about climate change issues, are going to be quite skeptical of these approaches,” Martella said.

“Fundamentally, a lot of these case are driven not to reduce greenhouse gas emissions or to make climate change better. They’re really driven as a cloak for other agendas – to address a certain industry, to resolve other issues, or to put pressure on certain companies and target those companies,” he said.

“I think courts, while they’re sympathetic to the notion of pushing the envelope, even, of creative legal arguments to address climate change or reduce greenhouse gases, I think they’re more skeptical when they sense that climate change issues are being used to other arguments,” he said.

Robert Percival, director of the environmental law program at the Francis Carey School of Law at the University of Maryland, gave an overview of the global political landscape on climate change, including the lead-up to last December’s agreement in Paris.

“One of the hidden untold stories about the Paris agreement is the key role that the U.S. and China played by reaching their bilateral agreement on climate change,” he said.

Percival said that after China received strong international condemnation for not agreeing to work toward capping its emissions at a 2009 conference in Copenhagen, it made an abrupt about-face. That was due in large part to the fact that the Chinese leadership found there was “great economic opportunity” in the country’s advanced wind, solar and electric car technologies.

Still, he said, there was huge surprise when President Barack Obama and Xi Jinping, his Chinese counterpart, announced a bilateral climate agreement (including technology sharing) in which both countries pledged to reduce their emissions.

“That so changed the global political dynamic — that the two largest greenhouse gas emitters in the world were agreeing to take aggressive steps to cap and reduce their emissions — it changed the dynamic in a way that led to the successful agreement in Paris last December,” he said.

In the United States, Martella noted, even though President George W. Bush shortly backed off a pledge he made during the 2000 election campaign to work toward reducing the country’s emissions (because, he said, China and India weren’t reducing theirs),  the Supreme Court in its 2007 decision Massachusetts v. Environmental Protection Agency ruled 5-4 that the agency was wrong in deciding that it did not have the authority under the existing Clean Air Act to regulate greenhouse gas emissions.

It’s that ruling that underpins the climate change actions taken by the EPA under Obama, including the sweeping Clean Power Plan promulgated in 2014. However, in his last judicial act before his death in February, Justice Antonin Scalia joined four other justices in placing a stay on the implementation of the plan. Percival called the high court’s stay a “breathtakingly unprecedented” move of judicial activism, since the issue wasn’t even before it.

But because the U.S. Court of Appeals for the D.C. Circuit has “exclusive venue” over the Clean Air Act and the Supreme Court is likely to be split 4-4 on any decision, he said, the decision of the lower court (which had already ruled against a stay) will become the law of the land. Oral arguments in what Percival called “the mother of all litigation” are slated for June 2.

Turning to “Climate 2.0”, Percival noted that the RICO-style cases against the tobacco companies turned largely on what was shown the companies, or associated groups, knew about the harmful effects of tobacco use while they made contrary public statements.

“These cases, if they are ever brought, will turn on what the evidence shows about did the oil companies, like the tobacco companies, say to one another ‘We know that climate change is a serious problem and our products are exacerbating it, but we’ve got to deceive the public,'” he said.

“I think we’ll still see lots of efforts in the courts to put pressure on countries and emitters to continually to reduce their emissions. But hopefully, those will go in a direction that will help with the energy transformation that is underway worldwide to help reduce greenhouse gas emissions,” he said.

Clara Poffenberger, an environmental lawyer in private practice who was once an in-house counsel for ExxonMobil, touched briefly on the already-discussed issues raised by the Clean Power Plan and litigation aimed at holding emitters directly responsible for climate change impacts.

But one area she said has not received enough attention is litigation involving public infrastructure, including ecosystem infrastructure and adaptation failures. These include whether government entities at every level — federal, state and local — have ” a duty to actually change and make improvements to infrastructure to adapt to changing weather conditions.”

Poffenberger discussed consolidated federal lawsuits involving the canals in Louisiana that were constructed in the late 1950s through 1960s that were breached in the aftermath of Hurricane Katrina in 2005. The cases involved the federal Army Corps of Engineers’ alleged failures to properly construct the canals and maintain them in the ensuing decades.

While the conservative Fifth Circuit Court of Appeals initially found that the Corps was liable for damages caused by its failure to maintain the canals in the face of scientific evidence about the storm surge effect, she said, it shortly thereafter had a “change of heart” and withdrew that ruling. The initial ruling would have had a major implications for governmental entities at every level about their duty to act to protect against environmental dangers.

As it stands now, she said, there remain open questions about whether agencies or private facilities have a duty to act to protect against environmental dangers even if there is no change being made to the physical environment.

Copyright © 2016 Ken Fountain. All rights reserved.


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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty inxfcgclude law and courts, local government and industry and environmental issues. You can follow me on Twitter at @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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