Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

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 (5^th 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.

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.

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.