Does CERCLA's "Act Of God" Defense Apply In Climate Change Litigation

In a decision issued on May 2, 2014, the Second Circuit held, in Cedar & Washington Assocs. LLC v. Port Auth. of N.Y. & N.J, 2074 BL 123476,2d Cir., No. 10- 4197, that the "act of war" affirmative defense relieved World Trade Center owners and lessees and airlines of Superfund liability for dust that infiltrated a building a block away after the collapse of the Twin Towers on 9/11.

The Second Circuit held that CERCLA was "not intended to create liability for the dispersal of debris and wreckage from a catastrophe that was indistinguishable from military attack in purpose, scale, means, and effect"

Dicta in the Second Circuit's ruling may have implications for environmental claims relating to climate change? With all of the pollution caused by storm events, which seems to be increasing year by year, will this decision provide a defense to a chemical manufacturer, whose product was released into a waterway because of a hurricane?   In its ruling, the court analogized 9/11, an act of war, to a tornado, an act of God. 

CERCLA provides three defenses to strict liability for releases of hazardous substances. The potentially responsible party (PRP) must prove that the release was "caused solely" by (1) an act of God, (2) an act of war, or (3) an act of a third party.

In exonerating the 9/11 defendants on the basis of the "act or war" defense, the court determined that the attacks were the "sole cause" of the alleged release, comparing the situation to the application of CERCLA's "act of God" affirmative defense to a tornado.  In her article in the Bloomberg BNA Toxics Law Reporter on May 8, 2014 (29 TXLR 407) titled "Superfund Suit Against WTC Parties Fails; Could Impact Claims Related to Climate Change", Perry Cooper examines language in the Second Circuit's decision that may be potentially useful in establishing an "act of God" defense in climate change litigation. 

"It would be absurd to impose CERCLA liability on the owners of property that is demolished and dispersed by a tornado", the court said.  "A tornado, which scatters dust and all else, is the 'sole cause' of the environmental damage left in its wake notwithstanding that the owners of flying buildings did not abate asbestos, or that farmers may have added chemicals to the soil that was picked up and scattered." 

Hopefully,  no CERCLA trial court will ever be asked to evaluate whether, in the wake of  a terrorist attack that results in the  release of hazardous substances, a defendant can avail itself of the "act of war" defense. However, it is likely that Cedar & Washington Assocs LLC will be cited for the proposition that releases occasioned by  severe unforeseeable storm events should be considered acts of God. 



Governor Cuomo's Plan For Disaster Preparedness

At an NYLCVEF Eco-Partners Breakfast conducted at the offices of the Durst Organization on January 28, 2014, Jamie Rubin, the Director of the Governor Cuomo's Office of Storm Recovery New York Rising Community Reconstruction Program, outlined the State's plans for protecting critical systems and infrastructure.  Ably assisting Rubin at the presentation was New York Rising Policy Director, Kate Dineen.

A key challenge for New York is that much of the ciritical infrastructure--mass transit and electric systems in particular--is located underground where it is vulnerable to seawater.  In Upstate and on Long Island, communities and infrastructure are built along coastline or  adjacent to waterways, making these these communities vulnerable as well.  According to Rubin, the State has committed $17 billion dollars toward the protection of New York by making critical changes to infrastructure, transportation networks, energy supply, coastal protection, weather warning systems and emergency management.  Rubin described the Governor's  resiliency strategy as holistic.  A detailed description of the State's strategy can be found on the Office of Storm Recovery website.

 Some of the hallmarks of the program are:

  1. building an advanced meso-net weather detection system that will have 125 interconnected weather stations to provide real-time warnings of local extreme weather and flood conditions;
  2. building new natural infrastructure to protect coastline and provide advanced flood control for inland waterways. An important component of this project will be Spring Creek, an inlet of Jamaica Bay in Queens, where the State plans to build a self-sustaining system of natural barriers to will protect local homeowners and mitigate storm damage;
  3. replacing and repairing 104 older bridges at risk for future flooding;
  4. creating "microgrids" (independent community-based electric distribution systems) throughout the State; and
  5. creating a Strategic Fuel Reserve and gas station back-up power on critical routes within NY.

One environmental challenge that remains unfunded is stormwater reduction.  In the aftermath of Hurricane Sandy, uptate communities suffered massive stormwater damage.  Rubin estimated that tens of billions of dollars, not available now, would be required to address stormwater reduction.

One component of the Governor's response to Hurricane Sandy was the Recreate New York Smart Home Buyout Program which, according to news reports, enjoyed a 99% participation rate in storm-shattered Oakwood Beach in Staten Island, involving some 418 parcels.The homes in Oakwood Beach will be demolished and "returned to Mother Nature", according to Barbara Brancaccio, a State spokesperson.   

Rubin did not believe that the State's home buy-out program in locales like Oakwood Beach would create a "moral hazard".  First, he explained that only primary homes, not vacation homes, would be covered by the program.  Second, the buy-out contained a $750,000 cap based upon pre-storm valuations.  Finally, program recipients would have sustained substantial property damage.  All of these factors mitigated against the likelihood of anyone obtaining a windfall through participation in  the program.  Photographs depicting the horrific storm damage suffered in parts of Staten Island demonstrate the justification for buy-out relief, which is a tool designed both to assist homeowners and  prevent post-storm rebuilding in flood prone areas.. 

Federal Courts Uniformly Embrace Climate Science

A visitor to Capitol Hill might come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is caused by human activity.  But one place where there are few such questions is the courts. 

In a compelling analysis of federal court decisions addressing climate change issues,  Michael B. Gerrard, Professor of Professional Practice and director of the Center for Climate Change at Columbia Law School, argues persuasively that climate change science has been unanimously accepted by the courts (with one piddling exception) and  the basis for several significant decisions.  Anyone in the position of having to argue the acceptance of climate science in a court case should take note of Professor Gerrard's article, "Court Rulings Accept Climate Science", which appeared in the New York Law Journal on September 12, 2013, which contains lengthy citations to the relevant case law.   

In an earlier article on this blog, we discussed how the court’s embrace of climate change science, relied upon by EPA, had been largely overlooked by commentator writing about the  District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA,   In that article, we observed that the decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century.

In reaching its determination in that case, the three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.



Mayor Bloomberg To Tackle Climate Change Post-Sandy

Mayor Michael Bloomberg provided his inspiring vision of New York City in the wake of Hurricane Sandy this morning at the Downtown Marriott at a breakfast titled, “Shaping New York City’s Future After Sandy.” The surprise guest at the event was Vice President Al Gore, who addressed Climate Change issues in the wake of Hurricane Sandy and introduced the mayor.

Gore advised the overflow breakfast crowd that New York City was fortunate to have Mayor Bloomberg heading and driving the re-building effort. In his mind, and in the minds of leading Climate Change scientists, such as Dr. James E. Hanson  and Dr. Kevin Trenberth, the ferocity of Hurricane Sandy was clearly attributable to global warming.

Although Hurricane Sandy was a Category I storm, it had the lowest barometric pressure of any storm in history north of the Mason Dixon Line. Gore asked rhetorically, “What will it take for a national government to take action?” Using a computer analogy, Gore argued that our democracy had been “hacked.” The American people, he said, cannot afford four more years of governmental dysfunction.

Addressing New York’s recovery from Hurricane Sandy, Bloomberg thanked New York City’s policemen, firemen, sanitation workers and volunteers. He congratulated the Marriott Hotel, where the event was held, for reopening so quickly in a flood ravaged neighborhood. He said that he could see the waterline from the flood still visible in the Hotel lobby.

Although many buildings in Lower Manhattan still have no electricity and remain unoccupied, he applauded  the City Sanitation Department for removing over 350,000 tons of debris from Lower Manhattan, which has at least restored the appearance of business as usual to the area, even if buildings there remained uninhabitable and unoccupied..

Bloomberg stated that New York had never before been hit with a storm with Sandy's ferocity. Water levels at the Battery reached 14 feet in elevation, an event that FEMA previously predicted had a less than 1% probability of occurring. He urged the audience not to leave Climate Change to future generations to address. He cautioned that a child born today would see a two and a half foot rise in sea level by his 40th birthday.

Bloomberg urged New Yorkers to take a leadership role on the issue of Climate Change. If New York City takes action, the rest of the country will follow. In discussing New York’s leadership role, Bloomberg said that when California banned smoking in public places, no one took notice. But when New York City banned smoking in public places, the rest of the world followed. Quoting former Mayor Ed Koch, “New York City is where the future comes to audition.”

Cities around the world are not waiting for national governments to act on Climate Change. Mayors around the world formed the C40 Cities Climate Leadership Group in 2005, a network of the world’s largest cities committed to addressing Climate Change. Bloomberg is the current C40 Chair.

Bloomberg stressed that the next climate-related event to strike New York may not come in a manner planned for or predicted. However, referencing past catastrophic events to strike New York over the past two hundred years, he predicted that New Yorkers would continue to thrive through adaptation, and placing “politics as usual” aside, to come up with the best solution for the City. In particular, he discussed the Great Fire of 1835, which burned most of Lower Manhattan to the ground. As a result of that experience, the City reformed the Fire Department and built a municipal water supply at the Croton Dam upstate to ensure that water would be available to fight future fires. The Great Blizzard of 1888 resulted in the planning for a subway system; the Triangle Shirtwaist Factory Fire of 1911 resulted in the promulgation of a new fire code, child labor laws and workplace safety rules; and 9/11 resulted in the City establishing a sophisticated security apparatus.

 Looking to the future, Bloomberg advised that he had formed a “After Action Review” to critique the response to Hurricane Sandy. He expected to receive the report by the end of February 2013, and to make it public thereafter. He also informed attendees that he had retained Seth Pinsky , President of the NYC Economic Development Corporation, to develop New York’s action plans for the future under the guidance Deputy Mayors Cass Holloway and Bob Steel. Pinsky’s report will discuss comprehensive planning and building proposals for each community that was stricken by Hurricane Sandy, and examine, among other things, schools, businesses, homes and hospitals in those areas.

 Bloomberg stressed that the City needs to adapt to Climate Change risk and the attendant rising sea levels and increasing storm intensity. He said that he planned to propose new zoning regulations that will permit homeowners and businesses to elevate boilers above ground. He will modify zoning rules to permit residents to have rebuild their homes to build higher without regard to existing height restrictions. He will work with FEMA to revise the 1983 FEMA Flood Maps so that appropriate structural requirements in those vulnerable zones may be addressed.

 Bloomberg stressed that he has no intention of abandoning the waterfront, but recognized that it is not possible to merely rebuild and hope for the best. The rebuilding has to be performed smarter and more sustainably. Bloomberg is examining Staten Island’s Green Belt and restoring wetlands in and around Manhattan that will provide protection to the City.

 Bloomberg advised that he recently met with the CEO of Verizon to discuss plans for rebuilding its network in Lower Manhattan. Some 95% of Verizon’s copper network was taken out of commission in Lower Manhattan as a result of the hurricane. Because wireless networks are increasingly important, Verizon must rebuild with fiber, rather than copper. In addition, the Mayor said that it was unacceptable that cell towers had only eight hours of battery backup due to the City’s heavy reliance on cell service. Those towers must provide power for much longer periods. In addition, he announced that Con Edison would make a $250,000,000 investment to "harden" its electrical, gas, and steam systems.

The morning’s event was co-sponsored by The New York League of Conservation Voters (“NYLCV”) and the Regional Plan Association.Marcia Bystryn, the President of NYLCV, opened the meeting by reminding the audience that PlaNYC was announced by the Mayor almost six years ago to the day. PlaNYC was created as a bold agenda to meet the challenges of a changing climate and challenged New Yorkers to ask each other how they wanted their city to look and feel in 2030. Bystryn stated that, “We can build on the principles of PlaNYC in the wake of Hurricane Sandy, but with a renewed sense of urgency and creativity.”

 Robert D. Yaro, the President of the Regional Planning Association, who spoke next, urged that new approaches to how we build our homes, roads and infrastructure had to be adopted to make them more resilient against storms like Hurricane Sandy.

Michael Brune, the Executive Director of the Sierra Club, pointed out that in the Presidential Campaign, it was not one of the candidates running for office who made Climate Change an issue; rather; it was Mayor Bloomberg.

 According to Brune, the United States has retired 125 coal plants during the last several years. As a result, the percentage of the nation’s power needs from coal plants has sprung from 52% to 32% during this period, and largely explains why the United States has reduced greenhouse gas emissions more than any other country in the world. Brune argued that, although an international treaty on greenhouse gas reduction might be necessary, a treaty alone would not resolve the issue. Rather Climate Change needs to be fought city by city and plan by plan.


Climate Change Science: Trial Courts And Regulations

Overlooked in the District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA, is the court’s discussion of the climate change science relied upon by EPA. The decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century. The coal industry brought suit against EPA arguing that it had overstepped its jurisdiction under the Clean Air Act and acted without having an appropriate scientific basis for its actions. (Interestingly, several of the utilities among the Petitioner members had earlier argued the opposite during the Supreme Court argument in AEP v. Connecticut, where they sought dismissal on the ground that the EPA had the authority to regulate greenhouse gases under the Clean Air Act.)

The three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.

The industry cried “Foul!”, asserting that EPA had improperly “delegated” its judgment to these three organizations by relying on their assessments of climate change science rather than EPA making its own assessment. In rejecting this argument as “little more than a semantic trick,” the court held that:

"EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question." (Emphasis added)

EPA’s reliance upon IPCC, USGCRP and NRC assessments in reaching its Endangerment Assessment, and the court’s endorsement of EPA’s methodology in doing so, makes the determinations and findings of these organizations all the more important in the regulatory sphere. Because these groups make their assessments on the basis of their review and analysis of hundreds of scientific studies, reports and articles, the question arises how these organizations made the final determinations upon which EPA has relied. For example, what role, if any, does politics and organizational in-fighting affect the finished product? IPCC publishes a comprehensive set of “Principles and Procedures,” which is designed to establish comprehensiveness, objectivity, openness and transparency as guiding principles of IPCC work. For its part, IPCC clearly appreciates how important its work has become on the world climate change stage.

 But it is not clear how the findings of IPCC and other climate change organizations will be addressed in the courtroom in a non-regulatory civil proceeding. Will it be enough for an expert witness in climate change litigation to merely rely, as did EPA, on what the D.C. Circuit Court of Appeals characterized as “overarching conclusions” about the state of climate change science?
These organizations’ assessments provide data and information on, among other things, the amount of greenhouse gases being emitted by human activities, their continued accumulation in the atmosphere, the resulting observed changes to Earth’s energy balance, temperature and climate at global and regional levels, “and other climate-sensitive sectors and systems of the human and natural environment.”

Unlike the regulatory arena, civil litigation in our nation’s federal courts requires that experts provide detailed bases for their opinion. It should not be enough that a climate change expert rely upon a general organizational finding. Rather, the expert must be required to look at the specific peer reviewed scientific works that form the basis of his, rather than an organization’s, opinion. Although the court determined that EPA’s reliance did not constitute a “delegation” of authority, we would expect that  trial court  would not permit a scientific expert to merely rely on the conclusions of these organizations, no matter how scientifically compelling they appear to be..

Plaintiffs Add "Public Trust" Doctrine to Toolbox

The “public trust” doctrine is a legal principle derived from English Common Law.  Environmental groups are now seeking to expand the application of the public trust doctrine to require states to address climate change.  The concept is a new and potentially valuable addition to plaintiffs’ toolbox in climate change litigation.  Until recently, the public trust doctrine has mostly been applied to protect the waters of the state – as a public resource – for purposes of commerce, fishing and recreation. 

In an Environmental Alert (July 17, 2012) titled, “Texas Trial Court Recognizes Potential Application of  “Public Trust” Doctrine to Redress Climate Change,” Richard O. Faulk, a partner at Gardere Wynne Sewell LLP, discusses the origin of the public trust doctrine and how it is being utilized in Texas and elsewhere to create a new cause of action for environmentalists seeking natural resource protection through court action. 

Mr. Faulk’s Environmental Alert reports on a lawsuit brought by the Texas Environmental Law Center against the Texas Commission on Environmental Quality (“TCEQ”) to demand that the agency take action to regulate greenhouse gas emissions.  The Texas lawsuit Bonser-Lain v. Texas Commission on Environmental Quality, Case No. D-1-GN-11-002194 (201st Dist. Ct., Travis County, Texas), followed in the wake of TECQ’s denial of plaintiff’s petition for rulemaking related to greenhouse gas regulations.  Plaintiffs sought judicial review to force the TECQ to regulate emissions arguing that the atmosphere is a “public trust” under common law and a fundamental natural resource entrusted to the care of the government for preservation and protection.

Despite the “displacement” or preemption of common law remedies in the climate change arena recognized by the U.S. Supreme Court in American Electric Power Company v. Connecticut, 564 U.S. _____ (2011), the Texas district judge in Bonser-Lain stated in a letter that he disagreed with TECQ’s position that the public trust doctrine should be limited to water issues.  Rather, the Court concluded that all natural resources of the State fell within the ambit of the doctrine. 

This morning, Bloomberg BNA Toxics Law Reporter (27 TXLR 815) reported that a climate change suit against New Mexico brought pursuant to the public trust doctrine has been permitted to proceed. The article referenced the July 14, 2012 ruling in the case of Sanders-Reed v. Martinez, N.M. Dist. Ct., No. D-101-CV-2011-1514, in which plaintiffs’ petition, prepared by WildEarth Guardians, sought to compel the State of New Mexico to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to reduce those emissions

In her ruling in Sanders-Reed, the Hon. Sarah Singleton did not address the public trust doctrine specifically,  In a very short opinion, she stated that the State's motion was "well taken to the extent the Complaint attempts to assert claims based on the New Mexico Legislative's failure to act with respect to the atmosphere, but that Defendants' other arguments are not appropriate for disposition at the pleading stage". She further held that Plaintiffs had made a substantive allegation that the process by which the legislature sets air quality standards, the "process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  Apparently this was enough to keep Plaintiffs' Amended Petition alive. Defendants memo of law in support of the motion is linked here as is Plaintiffs' response and Defendants' reply.

As these and similar pending cases wend their way through the appellate courts, it should be interesting to see whether the reach of the public trust doctrine is permitted to expand beyond protection of water resources into climate change.

Seth Jaffee, a lawyer following these issues at Foley Hoag in Boston, reported on both the New Mexico case and a case in federal district court in the District of Columbia before the Hon. Robert Wilkins.  In a Memorandum Decision, dated May 31, 2012,  Judge  Wilkins dismissed the federal public trust climate change suit, Alec L. v. Jackson on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, the public trust doctrine had been displaced by the federal Clean Air Act.

Mr. Jaffee observes that first ground for dismissal in Alec L. v. Jackson was not relevant to Sanders-Reed and would not have impacted the New Mexico motion practice. However, it is worth noting that the State's lawyers at the law firm of Keleher & McLeod attached Alec L. v. Jackson to Defendants' Notice of Additional Authority.  Alec L. v. Jackson makes clear that the public trust doctrine is a creature of state law. Therefore, New Mexico law would have to be examined in deciding whether to apply the public trust doctrine to protect New Mexico public trust assets.  Even so, the states can certainly argue that climate change is more appropriately regulated through federal legislation and regulation rather than through the individual state action. 

California Nixes CEQA Climate Change Review

In an earlier blog post, we discussed a setback for the consideration of climate change impacts in “Reverse Environmental Impact Statements” as a result of a California Court of Appeal invalidating guidelines to the California Environmental Quality Act (“CEQA”). The California guidelines required that a developer’s EIR analyze any significant potential climate change impacts to a proposed mixed use real estate development project in Marina Del Rey in Los Angeles County. In striking down the guidance, the court found held that the purpose of the EIR was to identify significant effects of a project on the environment, not significant effects of the environment on the project. At the time, we were awaiting the California Supreme Court's decision on appeal.

In March 2012, the California Supreme Court decided not to hear the appeal of the Court of Appeal decision. Thus, at least for the time being, developers in California will not be required to discuss potential climate change impacts on proposed projects in environmental impact statements. Consequently, the Agency will no longer be able to examine the significance of certain impacts, such as potential flooding and earthquake risks, on such projects. The ruling will almost certainly narrow the scope of issues the Agency will consider for an EIR review, which may significantly reduce the time and costs involved.

As I recently discussed with Environmental Law 360, it is now up to the California legislature to decide whether to amend CEQA to permit regulatory consideration of climate change impacts on proposed projects. Developers may factor climate change into their planning regardless because it is likely that prospective long-term commercial tenants will want to know how climate change could impact the property. As California is often a bellwether on environmental issues, it will be interesting to see how other state agencies, with regulatory guidelines similar to California’s, will proceed.

The Reverse Environmental Impact Statement

The traditional environmental impact statement (“EIS”) examines the effect of a proposed project, such as a construction project, on the environment. However, various federal, state and local statutes and rules are now looking in the opposite direction – at how environment changes might affect a project.

In an article in the New York Law Journal, dated March 8, 2012, “Reverse Environmental Impact Analysis: Effect of Climate Change on Projects,” Michael B. Gerrard, a distinguished professor at Columbia Law School, examines what he terms “reverse environmental impact analysis.” For example, if during the expected lifetime of a proposed building, the building site may be endangered by sea level rise, should this be disclosed in an EIS?

In a recent case involving a proposed mixed-use real estate development project in Marina del Rey in Los Angeles County, the court invalidated recent guidelines to the California Environmental Quality Act (“CEQA”), which is similar to New York’s SEQRA. The California guidelines required that the EIS (or EIR as it is referred to California) analyze any significant environmental impacts the proposed project might cause. In striking down the guidance, the California Court of Appeal held in Ballona Wetlands Land Trust v. City of Los Angeles (November 2011) that this “reverse” analysis was inconsistent with the CEQA statute. The court found that the purpose of the EIS was to identify significant effects of a project on the environment, not the significant effects of the environment on the project. The issue is now before the California Supreme Court, where the case is expected to receive significant attention.

At the federal level, the Counsel on Environmental Quality, which was created by the National Environmental Policy Act of 1970 (“NEPA”), issued a draft guidance in February 2010 urging consideration of the effects of climate change and greenhouse gas emissions on future projects. For example, if climate change studies were to demonstrate that a proposed airport will be underwater in twenty years, the EIS should contain that information.

On the state level, New York DEC in October 2010, issued a policy on climate change directing DEC’s staff to incorporate climate change adapation strategies into DEC programs and activities, as appropriate. Finally, at the local level, New York City’s Environmental Quality Review (“CEQR”) procedure now mandates consideration of greenhouse gas emissions resulting from projects.  

The take-away is that real estate developers will increasingly be required to consider  in their environmental impact statements how changes brought about by climate change may impact their proposed projects down the road.  Ultimately, legal challenges to regulations requiring reverse environmental impact statements will be turned aside and there will be a paradigm shift in how EISs are performed. 

AEP v. CT: Transcript of Supreme Court Argument

For those of you for whom reading the news and tabloid reports about the oral argument before the US Supreme Court in AEP et al v. Connecticut et al on April 19, 2011, was not enough, we attach the full unofficial transcript here


Eileen Millett is  Counsel to the law firm of Epstein Becker & Green, P.C. where she represents clients on environmental matters, including solid and hazardous waste and the Clean Water Act,  and counsels clients on general regulatory compliance questions, including issues related to toxic waste and water quality, permitting, emerging obligations under impending climate regulations and other federal, state, and local environmental statutes and regulations.  Ms. Millett previously served as Assistant Counsel with the Hazardous Waste Task Force at NYDEC and as General Counsel to the Interstate Environmental Commission, a tri-state water and air quality enforcement authority, where she conducted and managed litigation to control and abate water pollution and ensure adequate water and sewer infrastructure.  She teaches environmental law at the Syracuse University College of Law. 


Is the EPA over regulating and hurting business? Has EPA lagged behind in regulating Greenhouse Gases? The right answer depends on who you ask. But in deciding American Electric Power v. Connecticut the United States Supreme Court may indeed transform the way we produce and obtain energy. The case concerns the right of states and private parties to sue electric utilities under public nuisance theory for contributing to global warming. The United States Supreme Court will be asked to consider whether the plaintiffs have standing to bring the case, or whether the case presents a non-justiciable political question. In ordinary parlance, on standing — is there a connection between the utilities emissions’ and the injuries alleged, or does the causal chain depend on independent actions of others, and will the remedy sought, by itself, slow or reduce global warming; on political question —is the legislature and the Executive branches doing their jobs in a such a way that the Constitution envisions, making judicial intervention inappropriate. Said another way should we be about the business of sanctioning judicially engineered solutions to caps.

On April 19, 2011 in an expanded argument before only eight judges,with Justice Sotomayer recusing herself, six states, New York City and three private land trusts, sought an injunction in the form of an order to compel the reduction of carbon dioxide emissions and then to compel the reduction of those emissions from six major power producers, who they claimed, were the five largest emitters of carbon dioxide in the United States. 

By agreeing to take this case the U.S. Supreme Court is sending a strong signal that they will likely overrule this greenhouse gas public nuisance case, since they ignored the U.S. Solicitor General, who urged the Court to vacate the circuit decision, remand the case to the district court and to take note of the administration’s push to regulate. All this fuss, because states and private parties believe that power companies are creating a public nuisance by emitting greenhouse gases (GHGs) that contribute to global warming. Some states clearly feel that tracking and reporting requirements imposed by EPA do not go far enough, and what better time than now to place caps on emissions and reduce them. Proponents focused on reducing global warming mounted a multi-prong strategy to strike at the administration, Congress and the courts. The administration has indeed made efforts, but a change in the political climate, has diminished what was once a top priority. The House passed a bill that would have established a cap and trade program, but no law was enacted as the Senate could not agree on a proposal. EPA did enact some regulation, but obviously not enough to mollify the states; EPA’s regulation requires monitoring, reporting and registering, after which EPA will release that information to the public and enable us to see who indeed, are the largest emitters of carbon dioxide. These requirements will culminate in a national database and will enable EPA to establish a baseline. The question pending before the court is whether it is appropriate for the courts to step in. 

The District Court felt that the courts were not the appropriate forum. The Southern District Court of New York dismissed states and non-state plaintiffs (New York City and the private land trusts) complaint, holding that the plaintiffs’ claims would require the court to engage in the sort of balancing of competing public policy concerns that are the province of Congress and the President, and therefore presented a non-justiciable political question.  On appeal, a two-judge panel of the Second Circuit (the panel originally included Judge Sonia Sotomayor, who was elevated to the Supreme Court during the pendency of the case) vacated the district court’s dismissal and remanded the matter. The Second Circuit pointed to the lack of a detailed legislative or executive branch policy as evidence that courts could adjudicate such cases without interfering with the prerogatives of the political branches. Moreover, the court held that the obvious political ramifications of any decision that a court might render in the case did not necessarily transform the issue into a “political question.” The appellate court held that both the states and non-state plaintiffs could assert public nuisance. In particular, the non-state plaintiffs could assert such claims because of the widespread, interstate nature of the harm alleged. Finally, the Circuit held that the plaintiffs’ claims were not displaced by the Clean Air Act. Walking a fine land between the Supreme Court decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497(2007), which held that EPA has the authority under the Clean Air Act to regulate carbon dioxide as an air pollutant, and the principle that federal common law is displaced when Congress has spoken directly to a particular issue, the appellate court held that at least until EPA takes some specific regulatory action — beyond its proposed (but not final finding that GHGs endanger public health and welfare) —the statute does not regulate greenhouse gas emissions, or does not regulate such emissions from stationary sources. The day after the Second Circuit issued its opinion, EPA promulgated its Final Mandatory Reporting of Greenhouse Gas Rule. 

Before the Supreme Court ruling in Massachusetts v. Environmental Protection Agency, EPA had insisted that Congress had not given it the authority to deal with global warming, and EPA had cast doubt on the connection between GHGs and global warming, however, the Supreme Court ruling in case of Massachusetts v. Environmental Protection Agency, and granting certiorari in American Electric Power v. Connecticut demonstrates that the court is very willing to weigh in on climate change, or at a minimum provide some direction on the appropriate vehicle for such decision making.

The Supreme Court has for decades recognized a federal common law nuisance right, but has said that if Congress passes specific legislation that seeks to protect the public health and safety, the courts may and probably will have to allow those remedies to work in place of court crafted mandates. The states are seeking a policy outcome that the administration, Congress and EPA have not been willing to adopt. The outcome of American Electric Power v. Connecticut will have implications for two other common law public nuisance cases grounded in common law tort claims and alleging damage from climate change. Comer v. Murphy Oil, USA, 609 F.3d 1049 (5th Cir. 2010), and Native Village of Kivalina v. ExxonMobil Corp. 663 F.Supp.2d 863 (N.D. Cal. 2009).

The tone and tenor of the questioning a couple of weeks ago suggests that the court may well rule that EPA’s regulations of GHGs leaves no room for federal common law nuisance, which would invalidate any attempts to use federal common law nuisance to challenge GHG emissions, which leaves state common law nuisance, the CAA, amending the CAA and EPA regulating. Given that regulations are subject to ongoing legal challenges, climate change law may be uncertain for some time to come. Some have gone so far as to say that the CAA was not designed for the complexities of climate change. If you agree that the current vehicles available to us are inadequate to the task, we could be looking toward new legislation that will require attorneys to gear up and become knowledgeable at this evolving area of law so critically important to our energy needs.

Note: in May 2010, the EPA passed a rule to control greenhouse-gas emissions from light duty vehicles, and on January 2, the agency began to force power plants, oil refineries and other major emitters of greenhouse gases to obtain permits when making major modifications to their facilities or building new ones.

The Failure Of Climate Change Legislation

If Theodore J. Lowi, the John L. Senior Professor of American Institutions, teaching in the Government Department at Cornell University, one day decides to again update his classic study of American Government, End of Liberalism: The Second Republic of the United States, he could find further validation for his book's thesis in the compelling article by Ryan Lizza, "As The World Burns: How the Senate and the White House missed their best chance to deal with Climate Change", which appeared in New Yorker Magazine (October 11, 2010).  Mr. Lizza describes  how an unlikely coalition comprised of Senators John Kerry, Lindsey Graham and Joseph Lieberman (which came to be known as the "K.G.L") came tantalizingly close to putting together a bipartisan climate change bill, but failed in the end for several reasons. 

In End of Liberalism, Lowi examines how the American Republic has grown to gargantuan size without the necessary self-examination or  recognition that this growth has been fueled by delegation of power to interest groups. According to Lowi, Congress's delegation of its responsibility to govern to administrative agencies has led in turn to an unwholesome process of accommodation in which regulatory agencies become virtual captives of interest groups.  Lowi called this tendency "clientelism".  New governmnental policies have only served to tighten the vice-like grip of interest groups over the machinery of government. 

In preparing his article, Mr. Llzza asked former Vice President Al Gore why he thought the K.G.L. climate change legislation  failed.  The first reason given was Republican partisanship; the second reason was the Great Recession.  However, Mr. Gore's  third explanation for the legislation's failure pinpointed how Kerry, Graham and Lieberman approached the issue and is emblematic of our Congress' failure to take up necessary legislation in many areas, not merely in the environmental arena.  Mr. Gore stated:

 "The influence of special interests is now at an extremely unhealthy level.  And it's to the point where it's virtually impossible for participants in the current political system to enact any significant change without first seeking and gaining permission from the largest commercial interests who are most affected by the proposed change."

Professor Lowi, are you listening?


Key Literature Concerning Climate Change

Two wonderfully researched “must” reads for a better understanding of the debate over climate change are Climate Cover-Up: The Crusade to Deny Global Warming by James Hoggan (Greystone Books 2009) and The Climate War: True Believers, Power Brokers, and the Fight to Save the Earth by Eric Pooley (Hyperion 2010). Told from different perspectives, these books explain the global debate about climate change and identify the important players on all sides of the issue.  James Hoggan sets a provocative tone for his book from his opening metaphor: 

We are standing at the edge of a cliff. Behind us is a considerable crowd, 6.7 billion people and counting, and below is a beckoning pool. Some people say that you can jump into that pool without risk. They say that humans have been doing so for ages without any problems. But others say that waves have been eating away at the foot of the cliff, causing big rocks to fall into the water. They say that the risk of jumping grows more frightening by the day. Whom do you trust?

That’s a tricky question because here, on the climate change cliff, some of the lifeguards are just not that qualified, some have forgotten entirely whose interests they are supposed to protect, and some seem quite willing to sacrifice the odd swimmer (or the whole swim team) if they think there is a good profit to be made in the process. That’s what this book is about: lousy lifeguards – people whose lack of training, conflicts of interest, or general disregard have put us all at risk of storming off the cliff like so many apocryphal lemmings. 

What is exciting about Eric Pooley and James Hoggan’s work is that they bring the reader up-to-date concerning an ongoing struggle that requires sound scientific thinking and the best leadership that our country can provide. Everyone recognizes that climate change poses an enormous problem for our future, but there has been to date a disturbing lack of political willpower to address it.



Don't Blame Cows: Manipulation Of Climate Change Data

CNN reported not too long ago that Frank Mitloehner, an air quality specialist from the University of California at Davis, accused the authors of a 2006 report published by the U.N. Food and Agriculture Organization ("FAO"), titled "Livestock's Long Shadow", of skewing scientific data to grossly exaggerate the impact of livestock farming on climate change and, at the same time, underplaying the impact of climate change caused by transport.  As the debate over the legitimacy of certain climate change science continues to swirl in both scientific and academic as well as policy making circles, it is vitally important to avoid politicization of the science.  Politics may be unavoidable when policymakers' decisions on climate change will have a likely impact over time of tens of billions, but every effort should be made to keep the science on the straight and narrow.  That is why this article and the underlying FAO report is disturbing. The 2006 report claims that meat production is responsible for 18 percent of greenhouse gas emissions  world-wide (greater than impact of transport). The report goes on to claim that livestock farming occupies a whooping 30 percent of the world's surface and that its environmental impact will double by 2050 unless drastic action is taken now.  Who knew?  Frank Mitloehner contends the U.N. reached its conclusions for the livestock sector by adding up emissions from farm to table, including the gases produced by growing animal feed; animals' digestive emissions; and processing meat and milk into foods. The U.N. also downplayed climate change caused by transport by failing to add up emissions from well head to steering wheel, and only considered  emissions from fossil fuels burned while driving. In fact, leading authorities agree raising animals for food accounts for about 3 percent of all greenhouse gas emissions in the U.S., while transportation creates an estimated 26 percent.  Mitloehner's clarification must have brought about sighs of relief from U.S. beef associations, who were no doubt concerned about their member companies being tagged with responsibility for Hurricane Katrina's damage in Louisiana and Mississippi and the loss of sea ice in Kivaluna in the Northwest!  Meanwhile, environmentalists and campaigners including Paul McCartney, used the U.N.'s findings to urge consumers to eat less meat and save the planet with slogan:  "Less meat = less heat."  Sadly, once an icon in children's literature, Old McDonald's Farm, is no longer the innocent "EIEIO" of toddler rhyme, but a potential malefactor with inadequate insurance coverage to boot. 


Is There A Duty To Have A Green Workplace?

Guest Blogger Brian Molinari is the author of the Prima Facie Law Blog, and a Labor and Employment Associate at Epstein Becker & Green. Brian asks in this post whether an employer has a duty to provde a green workplace for her employees.

With the global spotlight on reducing greenhouse gases and carbon footprints, including the Obama Administration’s unprecedented attention on encouraging environmental conservation and development of renewable energy sources, it’s clear that we’re in a “go green” era.

To cut to the question posed in this blogposts’s title, the answer is “no”.  There is no legal duty, at the moment, for a private employer to “go green”. Perhaps at some point in the future, statutory authority such as the federal Occupational Safety & Health Act and state and local counterparts will include “green workplace standards”. For example, with respect to the investment in “green jobs” the Department of Labor and National Institute for Occupational Safety and Health are already focusing on ensuring that OSHA standards are appropriately designed and enforced to protect workers performing that type of work. At present, however, there are no mandates and instead only various governmental and non-governmental incentives for a workplace to go green. 

The U.S. Environmental Protection Agency (EPAand Pew Center on Global Climate Change estimate that commercial buildings account for nearly half of all energy consumption in the U.S., and contribute to nearly half of U.S. greenhouse gas emissions. The Energy Star Program, administered by the EPA and U.S. Department of Energy, attempts to encourage energy efficiency in buildings to meet strict energy performance standards set by EPA and reduce greenhouse gas emissions.  Federal buildings are eligible to receive a High Performance Building designation. 

In addition, commercial real estate and private companies are leading the green charge through voluntary compliance with standards set by a private, nonprofit membership organization, the U.S. Green Building Council (USGBC). The USGBC’s LEED® (Leadership in Energy and Environmental Design) Green Building Rating System™ awards points for satisfying specified green building criteria. The six major environmental categories of review include: 

  • Sustainable Sites
  • Water Efficiency
  • Energy and Atmosphere
  • Materials and Resources
  • Indoor Environmental Quality and
  • Innovation and Design

A building, or unit therein, can be certified as LEED Silver, Gold, or Platinum based on the total number of points earned within each LEED category. For example, our firm’s Miami and Los Angeles offices are in buildings with LEED Gold certification. It was reported two days ago that a high profile commercial property investment company will spend up to $10 million retrofitting its properties for environmental sustainability. LEED can be applied to all building types including new construction, individual unit commercial interiors, core & shell developments, existing buildings, homes, neighborhood developments, schools and retail facilities. In addition, LEED for Healthcare was released in early 2008.

In sum, the green movement has not yet resulted in mandated private employer obligations. Notwithstanding the lack of affirmative duty to do so, however, based on information provided by the USGBC and EPA there are many pragmatic benefits that employers should consider for greening their workplaces:

  • Monetary:  Funding and tax incentives 
  • Energy Efficiency:   Using energy more efficiently may save operating costs on utility bills over the life of the building; reduce the cost per unit on manufactured goods and services; and enhance resale and lease value of real estate
  • Environmental Efficiency:   Reducing environmental impact may reduce waste materials and disposal costs, water usage, chemical use and disposal costs; encourage recycling and reuse of materials; develops local markets for locally produced materials, saving on transportation costs and develops economy-of-scale price reductions
  • Human Efficiency:   Improving indoor environment, producing healthier places to work leading to increases productivity; reduction in absenteeism; boosting morale and corporate loyalty (also through creation of corporate “green teams”), and reduction in employee turnover
  • Goodwill:  Green Buildings often receive high profile notoriety and increased public perception of goodwill toward employees and the community.  

Climate Change Science in the Courtroom

Two electrifying Circuit Court of Appeals cases handed down in 2009 may set the stage for climate change litigation in the years to come. The decisions are Connecticut v. American Electric Power Co., et al., 582 F.3d 309 (2d Cir. 2009) and Comer v. Murphy Oil USA, et al., 585 F.3d 855 (5th Cir. 2009). In both cases, the Court of Appeals reversed the decision of the federal district court and held that the plaintiffs had pleaded adequate facts to permit their cases to proceed. Therefore, unless the United States Supreme Court weighs in and reverses this growing momentum in climate change litigation, it is likely that federal trial courts will be grappling with all of the issues surrounding climate change liability, not least of which will be the science. Did defendant oil and coal producers, chemical companies and coal-using companies bring down the wrath of Hurricane Katrina on the Mississippi plaintiffs? What scientific evidence will be marshaled by plaintiffs to support their allegations? These are the questions that the Comer court will have to grapple with. The very idea that a corporate entity could be found legally responsible for unleashing the catastrophic power of a hurricane would have been unthinkable even ten years ago. Leaving aside epochal issues of public policy, justiciability and theology, the science surrounding climate change litigation will figure prominently in these lawsuits. 

An excellent article on scientific issues in climate change litigation, Issues of Proof in Climate Change Litigation, by Francis J. Menton, a partner at Willkie Farr & Gallagher, appeared in The New York Law Journal (12/29/09).  Mr. Menton’s discourse, commencing with the issuance in 2001 of the Third Assessment Report (“TAR”) from the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and bringing us up-to-date, reads like a Dan Brown conspiracy thriller, replete with conflicting claims and allegations of scientific fraud, data distortion, revelations by whistle blowers, and spoliation of evidence. On the one hand, the climate change plaintiffs allege that there exists a “clear scientific consensus that global warming has begun and that most of the current global warming is caused by emissions of greenhouse gases, primarily carbon dioxide from fossil fuel combustion.” On the other hand, there are those who deny that there is any consensus and that the entire hypothesis of human-caused or “anthropogenic” global warming is an “urban myth.” Undoubtedly, there will be Daubert–driven debates on both general and specific causation in the global warming litigation.