Still No Judicial Remedy For Climate Change — Don’t Expect Advocates To Stop Trying

Posted on July 3, 2018 by Seth Jaffe

On June 25th, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change.  The more complicated answer?  Because AEP v. Connecticut held that the Clean Air Act displaces federal common law claims for greenhouse gas emissions in the United States and because claims with respect to sales by the defendants outside of the United States could not be addressed by a U.S. court without violating the presumption against giving extraterritorial effect to U.S. laws.

Here, plaintiffs seek to impose liability on five companies for their production and sale of fossil fuels worldwide. These claims — through which plaintiffs request billions of dollars to abate the localized effects of an inherently global phenomenon — undoubtedly implicate the interests of countless governments, both foreign and domestic. The challenged conduct is, as far as the complaints allege, lawful in every nation. And, as the United States aptly notes, many foreign governments actively support the very activities targeted by plaintiffs’ claims. Nevertheless, plaintiffs would have a single judge or jury in California impose an abatement fund as a result of such overseas behavior. Because this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil, we must exercise great caution.

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.  Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.

I couldn’t have said it better myself.  I’ve always thought that these types of suits are not the way to address climate change.  I’ve recently acknowledged that, if the current administration continues to rely on fake news to formulate its position on climate change, courts at some point might conclude that the exigencies of the situation require them to act.  For now, we haven’t reached that point, and I hope we never do.

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

As a follow-up to my earlier post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. 

The Dutch case is more similar to the Oregon children’s suit than Oakland litigation, because the Oregon case, like the Dutch case, is against the government, seeking further regulation, rather than against private parties, seeking damages.  All of these cases, though, present some of the same concerns regarding whether courts are the right place to make climate policy, as noted by the Dutch government spokesman, quoted in ClimateWire:

We also believe that renewable energy should be increased and CO2 emissions should be reduced, so this is really about something else: It’s about how the judge has intervened in something that’s [called] democracy, and actually democracy has been sidelined.

It would be nice if democracy could show a greater capacity for addressing climate change, but I still agree that sidelining democracy is rarely a good thing.  Of course, there are good scientific reasons why democracies don’t do so well at dealing with climate change.  Appeals to the courts may be unavoidable.

Federal Common Law Controls California Climate Actions: Never a Dull Moment

Posted on March 12, 2018 by Seth Jaffe

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v. Connecticut and subsequent decisions, such as Native Village of Kivalina, it seemed pretty clear that the federal Clean Air Act had displaced federal common law, leaving only potential state law claims in its place.

Judge Alsup had a different idea.  The cities’ claims were only brought against fossil fuel producers, not electric generators.  The claims were based on the allegations concerning the companies’ conduct in selling fossil fuels into the stream of commerce, while at the same time allegedly making misrepresentations concerning the risks of climate change.

Judge Alsup concluded that this was a distinction with a difference.  The Clean Air Act displaces federal common law regulating operations that emit GHGs.  The Clean Air Act, however, does not regulate the sale of fossil fuels.  Thus, it does not displace the type of public nuisance action at issue in this case.  (Of course, this leads to the odd result that the companies’ sale of fossil fuels is subject to public nuisance claims, even though methane emissions from oil wells and refineries are not, because those are subject to regulation under the CAA!)

Having made this critical distinction, the rest of the decision was relatively easy.  As Judge Alsup noted:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making. The range of consequences is likewise universal. Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is not to say that the ultimate answer under our federal common law will favor judicial relief. But it is to say that the extent of any judicial relief should be uniform across our nation.

I’m not sure that Judge Alsup is right, though I appreciate his creativity.  And if appellate courts decide he is right, the defendants may come to regret removing the action from state courts.

The North Slope Is Really, Really, Getting Warmer. Drill, Baby, Drill

Posted on December 20, 2017 by Seth Jaffe

The Washington Post reported last week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.

How hot does it have to get to get bounced by the computer?  How about average October temperatures 7.8 degrees warmer than in 2000?  Average November temperatures 6.9 degrees warmer than in 2000?  Likely culprit?  Melting sea ice means that less sunlight is reflected.  That’s one nasty negative feedback loop.

In the meantime, as I noted in October, Alaska Governor Bill Walker has concluded that Alaska needs more oil drilling (can you say “Open ANWR” three times fast?) in order to pay for climate change mitigation.  It’s apparent that Governor Walker has not read Faust.

Governor Walker, this one’s for you.

Climate Change Litigation – Will Property Insurers Take the Lead?

Posted on April 24, 2014 by Ralph Child

Common law litigation seeking relief from petrochemical companies for causing climate change has been much touted but little successful.

The insurance industry has been warning of huge coming losses due to climate change, but has not taken aggressive action to force change.

Until now? 

In a lawsuit filed in Illinois state court on April 16, 2014, some property insurers sued the City of Chicago and a host of regional and municipal water managers for failure to provide adequate stormwater storage.  The class action suit alleges that the plaintiffs’ insureds would not have suffered so much flood damage from a 2013 storm had the defendants exercised better planning and construction to deal with foreseeable storms. 

Notably, the plaintiff insurers rely heavily on the 2008 Chicago Climate Action Plan.  The plan recognized that climate change would cause increased amounts, durations and intensities of rainfall.  Plaintiffs allege that despite the foreseen problem and having had adequate time and opportunity, the defendants failed to make the recommended and necessary improvements, leading to the injuries to the insureds’ properties.

Certainly this suit faces many challenges.  Courts are slow to override state and local governments’ complicated budgeting choices.  Moreover, courts may be ill-equipped to oversee projects such as Chicago’s Deep Tunnel Project, which was commissioned in the 1970s to address metropolitan flooding, stormwater and sewage.  After more than $3 billion so far, itwill not be completed until at least 2029.

Also, query whether such litigation will help or hurt state and local efforts to adapt to climate change.  It could deter honest forecasting of what it will take.

Still, this lawsuit could augur a new wave of common law climate change litigation – a category involving well-funded plaintiffs with provable arguments for proximate cause of real damages.

Adaptation: Getting the Roles Right

Posted on November 25, 2013 by Jonathan Z. Cannon

In 2010, the National Academy of Sciences Committee on Climate Choices came out with a series of reports on the challenges facing the nation on climate change.  One of the reports dealt with adaptation – coping with the impacts of climate change that we cannot, or chose not, to avoid through mitigation. This report considered three possible models for federal-state-local relationships in adaptation. One model entailed a centralized adaptation program, “nested in a body of federal government laws, regulations, and institutions.” A second was a bottoms-up approach, largely self-driven by state and local actors. The third was an “intermediate approach,” in which adaptation decisions are largely decentralized but in which the federal government acts “a catalyst and coordinator” in adaptation policymaking. In true Goldilocks fashion, the NAS panel recommended the intermediate approach as “just right.”

It now looks as if the Obama administration is crediting that intermediate course in its climate adaptation policy – and appropriately so.  By contrast to mitigation, adaption presents as a local or regional problem, dealing with climate change effects that vary across regions and localities – wildfires in the west, flooding on the Gulf and Atlantic Coasts, tornadoes in the Midwest.  The law and policy of adaptation therefore should have a strong regional and local orientation.

Beginning in 2009, President Obama has taken a series of steps to get the federal government’s own house in order in understanding and adapting to climate change. [Reference Steve McKinney’s blog posting 11.6.2013] More recently, however, the focus has expanded to include coordination with states, tribes and localities – the decisionmakers on adaptation’s front line. The adaptation portion of the President’s Climate Action Plan announced in June of this year ordered the creation of a task force of state, local, and tribal officials to advise on key actions the federal government can take to help strengthen communities on the ground. (E.g.,“will provide recommendations on removing barriers to resilient investments, modernizing grant and loan programs to better support local efforts, and developing information and tools to better serve communities.”) 

On November 1, the President announced the members of the Task Force on Climate Preparedness and Resilience -- governors, mayors and tribal leaders -- and further elaborated its mandate: to make recommendations for steps the federal government can take to facilitate adaptive measures at the point of potential impact and to “otherwise support state, local and tribal preparedness for and resilience to climate change.”  Although the task force is set to terminate within 6 months of making its recommendations, it represents a step in the direction of NAS’s collaborative model.  Hopefully, it won’t be the last.

Adaptation to Climate Change: Emerging Priority

Posted on January 25, 2012 by Ralph Child

There is no alternative.  Whatever the causes, pace or impacts of climate change, people, cultures, economies and eco-systems will adapt to climate change as it occurs.  What’s in question is where, how much and when adaptation will occur and with what strategic planning, distribution of costs and injury.

To date, the inevitability of adaptation has been over-shadowed by the attention to efforts to prevent global warming.  Scary projections of flooded coastal cities and wholesale ecological change have been used more to support campaigns to reduce CO2 emissions than to promote serious planning for ocean rise and changed eco-systems.  Adaptation planning has not been the priority and has even seemed a cop-out.  But as hopes to prevent or slow climate change are not realized, adaption planning is emerging as a priority.

Indeed, behind the headlines efforts to plan for adaptation are already underway.  President Obama’s initial support for cap and trade got the attention.  But he also issued an Executive Order establishing a Climate Change Adaptation Task Force that is coordinating very significant federal efforts to gather data and plan for adaptation.   Many of those efforts are collected at EPA’s webpage on adaptation.  More than a dozen states have commissioned adaptation plans, e.g., the Massachusetts Climate Change Adaptation Report.  Some universities have developed programs focused on adaptation planning, e.g., UNC’s Center for Law, Environment, Adaptation and Resources (CLEAR).  Insurers and re-insurers, public authorities responsible for long-term infrastructure, and societies of professionals such as engineers and others are putting serious consideration into what adaptation will require over time by way of changed standards for public works and buildings. 

These efforts do not yet amount to a broad plan, but are laying the foundations for adaptation planning to seep broadly into capital planning and resource protection efforts across all facets of our economy.  Compulsory central planning is probably not a politically acceptable option – but the inevitability and breadth of adaptation efforts mean that millions of decision-makers still will plan for adaptation over time.