Global warming goes to Supreme Court

On Nov. 29, the U.S. Supreme Court will hear oral arguments in a case that will have a profound impact on how the U.S. will deal - or not deal - with global warming.

The case is Massachusetts v. EPA, a lawsuit filed by 12 states, along with several cities and nonprofit organizations, to

If the Supreme Court sides with the plaintiffs, it will be the first decision to give the federal government the authority to regulate emissions that cause global warming.

To date, the Bush Administration has refused to support the Kyoto Protocol and Congress has failed to take any action in the matter. This inaction, coupled with a growing consensus about global warming, has created a situation that is ripe for litigation. Environmentalists, attorneys general and plaintiffs' lawyers are turning to the courts, claiming corporations and governments must be held accountable.

While Massachusetts v. EPA has attracted nationwide attention, it is just one of a large and growing number of state and federal lawsuits dealing with global warming.

"There's been a lot of frustration at the inaction on the global- warming issue. The result has been a small boom in litigation," said John D. Echeverria, executive director of the Environmental Law and Policy Institute at the Georgetown University Law Center.

According to Echeverria, 15 other global-warming suits are pending in state and federal courts. They fall into four distinct categories:

Clean Air Act cases.

Claim that the federal government has a duty to control greenhouse gases, including Massachusetts v. EPA.

National Environmental Policy Act (NEPA) suits.

Claim that government agencies must include the consequences of global warming when they measure the environmental impact of projects they fund or license.

Preemption suits.

Brought mostly by automakers, these suits contend that more lenient federal air-emission standards preempt tougher state regulations.

"Nuisance" litigation.

Claim that contributors to global warming are creating a common- law nuisance, in the same way that corporate hog farms disturb neighbors.

Echeverria believes the NEPA cases have an excellent chance of success because "it's fairly elementary to apply NEPA principles to global warming." Although he is "cautiously optimistic" about the plaintiffs' chances in Massachusetts v. EPA, he believes the nuisance suits are a long shot. He is uncertain about the preemption cases.

A problem of standing

In all of these cases - but especially the nuisance suits - plaintiffs face a hurdle in demonstrating that they have standing to sue. That's because plaintiffs must show an injury that is traceable to a defendant's action - and in the case of global warming, the problem is a stew of greenhouse gases that come from everywhere on the globe.

Neil Gordon, an assistant attorney general in Michigan, which is siding with the EPA in the Supreme Court case, told a recent seminar at Georgetown University that his state is convinced that attempting to regulate greenhouse gases just in the U.S. is useless. He said that air samples above Michigan and the rest of the U.S. are similar to those in the rest of the world, which is covered by "a homogeneous soup in the upper atmosphere."

Emissions in the U.S., he said, are "part of the problem, but we need an international agreement."

"When you're talking about how the U.S., in particular, ought to respond to a concern that's raised by emissions and development throughout the world and not just the U.S., it's hard for individual states or environmental groups to show that the relief they're seeking will redress their injury," said Russell S. Frye, a Washington, D.C. attorney who represents the CO2 Litigation Group, an industry organization that opposes greenhouse-gas regulation.

"When you're dealing with a potential impact far in the future that is affected by activities of all the countries of the world, it does present unusual and difficult standing issues," he said.

Echeverria agreed.

"One of the challenging aspects of global warming litigation is that the contributors to the problem are so numerous and the impact so widespread that it's a challenge to the courts to get their hands around it," he said.

Should courts get involved?

There is also a question of whether courts are the right forum for addressing global warming, according to Frye. He pointed out that the preeminent nuisance suit to date, Connecticut v. American Electric Power, 04 Civ. 5669 LAP (S.D.N.Y. 2005), was dismissed in September 2005 by a federal judge in New York, who found that public policy regarding greenhouse-gas emissions is a "political question" to be answered by the political branches of government.

In that case, the plaintiffs - eight states, the city of New York and three land trusts - filed suit against five power companies that are the biggest greenhouse-gas emitters in the country. The plaintiffs have appealed the dismissal to the 2nd Circuit.

Plaintiffs' lawyers argue that in the absence of federal regulation, the various lawsuits must proceed.

Another nuisance suit, California v. General Motors, was filed on Sept. 20 and is reportedly the first to name auto manufacturers as defendants in a global-warming case. Unlike the New York suit, which seeks a court order forcing the power companies to curtail emissions, California is seeking damages from the six motor-vehicle defendants to compensate it for public costs that it claims are attributable to global warming.

California leads the charge

California is the center of auto industry preemption suits, which are responding to a new state law requiring the California Air Resources Board to develop and implement greenhouse-gas limits on vehicles starting in 2009. Ten states - Connecticut, Maine, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington - have followed California's lead In seeking to limit greenhouse-gas emissions from autos, and two more - Arizona and New Mexico - are planning to do so.

Another case that's drawing attention in California is Friends of the Earth v. Mosbacher, a large NEPA case claiming that two federal agencies, the Export Import Bank and the Overseas Private Investment Corporation are financing overseas fossil-fuel projects without assessing their impact on global warming.

Ronald A. Shems, a partner in the Burlington, Vt. law firm Shems, Dunkiel, Kassel & Saunders, is representing Friends of the Earth and expects a ruling soon.

"The reason we chose those two agencies is that we wanted to follow the money," Shems said. "In the last 10 years, [they] have provided $32 billion in financing for fossil-fuel projects alone, and projects financed by these two agencies are responsible for 8 percent of annual worldwide greenhouse-gas emissions."

The Supreme Court

Lawyers say the outcome of Massachusetts v. EPA will affect how the other litigation plays out. But much depends on how the Supreme Court crafts its ruling.

The first step for plaintiffs is to win standing. If they do, the ruling "can be expected to reverberate through other cases related to global warming and environmental law generally," wrote Justin R. Pidot, a fellow at the Georgetown Environmental Law and Policy Institute, in a new report that he authored, "Global Warming in the Courts: An Overview of Current Litigation and Common Legal Issues."

The second step is for the Court to examine the core of the case, which focuses on the EPA's own determination of what its greenhouse- gas regulatory powers are. The EPA has concluded that it doesn't have the authority to regulate greenhouse gases - and said in 2003 that even if it did have the authority, it would choose not to exercise it.

Following that announcement, the petitioners asked the D.C. Circuit to review the denial. In April 2005, a deeply divided court dismissed the case.

David Bookbinder, a senior attorney at the Sierra Club, admits he was surprised when the Court granted it. But he thinks the justices recognized that such consideration was needed given the badly splintered circuit ruling, coupled with a growing body of litigation in a variety of venues.

"We wrote the cert petition as a way of educating the Court that this issue is floating around out there," he said. "We told them it's bubbling and that they're going to get it sooner or later. I think it's a mark of the public-policy importance of the case that they took the first one that came their way."

Echeverria thinks the "very, very confusing" D.C. Circuit decision played a big part of the Supreme Court's decision to take the case.

"But I also think that this falls in the category of 'cases of major public importance and public interest,'" he said.

Cracks in the wall

Bookbinder points to another factor that has changed the landscape on greenhouse-gas emissions: Some of the power-generating companies have broken ranks.

In fact, two of the amici in Massachusetts v. EPA are large power companies - Calpine and Entergy.

Elise N. Zoli, a partner at Goodwin Procter in Boston, is not only representing Entergy, but is also sitting first chair during oral arguments. As such, she may be given a portion of the plaintiffs' time to speak about how a large power company wants greenhouse gases to be regulated by the EPA.

"This case makes for strange bedfellows," Zoli wrote in her amicus brief.

While most power generators are opposed to greenhouse-gas regulation, Zoli said that Entergy "seeks certainty with respect to the regulatory regime it must operate under and does not believe that the EPA's current position on CO2 regulation will stand the test of time."

Courts or Congress?

Much depends on how narrowly the Court rules. For instance, the justices could decide that the EPA has the authority to act but doesn't have to exercise it.

Bookbinder, however, believes that a limited ruling of that kind would still have broad impact.

"If we win on the merits of EPA authority, that's the big issue because that clears the way for California [to regulate emissions] and for the next administration," he said.

In addition, a plaintiffs' victory in Massachusetts v. EPA would remove the underpinning for the pending nuisance cases, according to Bookbinder.

"The nuisance cases only exist in the absence of federal regulation," he said. "So if we're successful and we get the EPA to start regulating, that removes the basis for any federal law claims."

But even if the plaintiffs lose on every argument, Bookbinder doesn't think it will be the end of the world. At some point, he said, the U.S. must take steps to reduce greenhouse-gas emissions.

"It will be up to Congress and I can live with that," he said. "Trying to make global climate policy through litigation is a real half-assed way of doing things. I'm the first person to say this is not a very effective means of addressing the problem, but unfortunately it's the only way we've got."