Guest Blogger, Ken Alex, on U.S. Climate Change Litigation, Part 3

Below is the final entry in a three-part series of guest blogs by Ken Alex, Senior Assistant Assistant Attorney General in charge of the Environment Section of the California Department of Justice, focusing on climate change litigation in the United States.

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The Fifth Circuit issued its opinion in Comer v. Murphy, and the Second Circuit ruled in Connecticut v. AEP that plaintiffs in those cases may proceed with public nuisance actions under federal common law based on the allegation that defendants’ greenhouse gas emissions contribute to global warming and harm plaintiffs.

So, now what?

The rulings have implications in at least four directions.  First, and most obviously defendants in both cases will almost certainly exercise their appeal rights, seeking rehearing and, potentially, cert. to the Supreme Court.  If those avenues prove fruitless, the cases will return to the district court, likely moving into the discovery phase.  It will be a number of months before either case moves to the trial stage, at which point plaintiffs will present evidence that human-generated greenhouse gases are causing global warming, that global warming is, right now, impacting plaintiffs, and that defendants’ emissions of those gases significantly contribute to the problem.  For example, in California, global warming is eroding coastline through sea level rise and repeated extreme storm events and reduced average annual snowpack in the Sierras. The Comer plaintiffs have the additional burden of establishing that defendants’ emissions contributed to a particular, discrete weather event, increasing the strength and destructive force of Hurricane Katrina.

No one suggests that the cases will be easy, but, speaking for California in the AEP case, we certainly look forward to presenting the overwhelming evidence connecting human activity to global warming and its impacts on the State.  Having said that, we recognize that Legislative action would be a better outcome for everyone.

The second implication of the rulings is an increased likelihood of additional cases targeting large-scale greenhouse gas emitters.  These cases are complex, time-consuming, and present some novel issues.  As a result, I do not expect a flood of new cases, but as the impacts of global warming continue to become clearer and greater, if Congress continues its inaction, additional litigation is virtually certain.

Third, there is reason to believe that recognition of a judicial forum for redress of harm caused by global warming may increase the chances of federal legislation because potential defendants who, in the past, have opposed legislation now see benefits.  The availability of a judicial forum increases uncertainty for large greenhouse gas emitters.  In recent weeks, we have seen a growing willingness of companies to support federal legislation.  Comprehensive federal legislation addressing global warming likely would “displace” federal common law, thereby precluding or limiting public nuisance actions and providing a level of certainty sought by companies.

Finally, in the absence of federal legislation, the public nuisance cases increase the chances that EPA will act to regulate greenhouse gas emissions further under the Clean Air Act.  After Massachusetts v. EPA, 549 U.S. 497 (2007), EPA clearly has authority to regulate GHG emissions under the Clean Air Act, and the Obama Administration has acted to do so with respect to mobile sources.  The mobile source regulations along with the EPA waiver allowing California to proceed with its own mobile source regulations enabled California to dismiss its public nuisance case against the six largest automakers.  EPA is now evaluating regulations for stationary sources, and if the regulations are sufficiently comprehensive, such regulations could limit or foreclose further federal common law court actions.

The interaction of activities at the three branches of government – public nuisance litigation, legislative proposals, and EPA regulatory process – underscore the propriety of the circuit court rulings recognizing the right to litigate under the federal common law.  In the face of significant harm from global warming, we should expect – insist – that all aspects of government be engaged in finding solutions.

Ken Alex

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