AGGREGATION: AN ESSENTIAL TOOL IN ACHIEVING IMPERATIVE ENVIRONMENTAL ENFORCEMENT, PROTECTION, AND JUSTICE.

• Author: Holmes, Jessica
• Position: Ninth Circuit Environmental Review

1. Introduction 549 II. Overview of Aggregation Devices 553 A. Class Actions 553 1. Rule 23(a)(1-4): Prerequisite Requirements for Class Certification 553 2. Rule 23(b)(1-3): Categories of Maintainable Class Actions 554 3. Rule 23(e) & Amchem: Settlement Class Certification 555 4. Rule 23(c)(4) & Met-Coil: Issue Class Certification 556 B. Multidistrict Litigation (MDL) 557 III. Essential Benefits of Aggregation 558 A. Strengthens Deterrence 558 1. Achieving Deterrence Through Influencing Industry Practices 559 2. Increasing Deterrence Through Collaboration 561 B. Bridges the Regulatory Gap 562 1. Resolves Public Enforcement's Limited Capacity and Political Influence 562 2. Protects Against Inadequately Regulated Hazardous Wastes 565 C.Achieves Environmental Justice 566 IV. Cases Illustrating the Benefits of Aggregation 568 A. Clean Diesel: Securities Fraud and Consumer Class Actions 568 B. PFAS: Consumer Class Action (Greenwashing) 570 C. BP Deepwater Horizon MDL: Environmental Disaster 571 D. Flint Water Crisis: Environmental Justice (Mass Tort and Environmental Pollution) 573 E. Oil Industry Colluding to Remain Profitable: Antitrust Class Actions 574 V. Aggregation Obstacles & Corresponding Solutions 576 A. Difficulties in Establishing Commonality and Predominance 576 B. Insufficient Remedy Due to Attorneys' Fees 578 C. Trends of Federal Courts against Aggregation and Heightened Standing Requirement 580 VI. Conclusion 583 I. INTRODUCTION

   A recent Supreme Court decision severely constrained the United States Environmental Protection Agency's (EPA) ability to enact and enforce nationwide, systemic changes to combat climate change. (1) In West Virginia v. EPA, (2) the Supreme Court applied a new and expansive form of the "major questions" doctrine to limit EPA's authority to regulate greenhouse gas emissions. (3) Chief Justice Roberts, despite conceding that regulatory caps on carbon dioxide emissions, to the extent that it forces a nationwide transition away from coal, may be a "sensible solution to the crisis of the day," concluded that EPA does not have the authority to adopt such a regulatory scheme. (4) Chief Justice Roberts reasoned that "[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body." (5)

   As a result of West Virginia, the Supreme Court devastated EPA's power to fight climate change in ruling that the agency lacked clear authority to regulate on a major question of policy. (6) Thus, going forward, the ability to address climate change, an issue that involves major questions of policy, through the development and enforcement of regulations is contingent on supportive actions promulgated by Congress and the states. (7) Stanford Law Professor David Freeman Engstrom described the effect of West Virginia on the American climate regulatory framework as "bleak" given that "Congress is so polarized it's paralyzed, and states and municipalities are hobbled by their limited reach, inadequate funding, and piecemeal authority." (8) West Virginia critically proves that it is not possible for us to viably combat climate change and secure a livable future for all if we are reliant on EPA's enforcement and development of environmental regulations.

   Despite the proliferation of environmental laws and regulations in the recent decades, prior to West Virginia, pollution, declining biodiversity, and climate change persevere. (9) The Secretary-General of the United Nations refers collectively to these problems as the "triple planetary crisis," and considers it society's "number one existential threat." (10) Unless we strengthen enforcement of environmental rules and find other mechanisms to hold liable parties accountable, preventable tragedies and harms will persist no matter how seemingly rigorous our environmental rules are. (11)

   The triple planetary crisis requires diverse and intersectional solutions. (12) In the aftermath of West Virginia, EPA's stifled regulatory powers makes it critical that we utilize solutions outside of the expansive major questions doctrine's reach. One such solution is aggregate litigation. To protect and promote our societal well-being while negotiating this crisis, we must align the solutions we need with the best interests of the market. As Judge Ambro powerfully said in another context, we are in an urgent situation and cannot, "risk making the perfect the enemy of the good." (13) "The United States has a deeply ingrained market-based system." (14) As a result, industry balances the costs associated with the choice to pollute or not. (15) The former often prevails as enforcement falls short of deterring injurious conduct and protecting our environment.

   Private aggregate litigation performs an important public service: it aligns self-interest with societal well-being. (16) Aggregate litigation involves numerous plaintiffs with claims against the same defendants. (17) This Chapter explores aggregate litigation devices, bringing attention to the immense power aggregate litigation wields. Even in pursuit of unconventional claims not typically aligned with environmental issues, aggregate litigation can execute environmental enforcement, remedy harm done to our environment and communities, and influence industry to adopt environmentally compliant practices. (18)

   The Volkswagen "Clean Diesel" litigation (Clean Diesel) (19) illustrates aggregate litigation's success in achieving environmental enforcement and protection. The Clean Diesel litigation encompasses a multidistrict litigation (MDL) which includes a securities fraud class action; consumer class actions and government actions; and independent aggregate litigations such as the recent Ninth Circuit case. (20) This recent case is a securities fraud class action and is one of the latest aggregate litigations pursued under the Clean Diesel litigation. (21)

   The Clean Diesel litigation is an example of the power of the courts, federal and state regulators, and of aggregate litigation to stop injurious conduct and protect the environment. (22) In less than a year, parties agreed to a robust settlement including requirements that Volkswagen to pay $2.7 billion to support the reduction of NOx in the atmosphere, $2 billion towards promoting non-polluting cars, and restitution on top of the vehicle value to more than 500,000 owners of the vehicles at issue, with the option to have the vehicle altered to original emission rates as advertised, or better. (23) The MDL was able to remove 98% of the 500,000 excessively polluting vehicles around the country from the road. (24) In addition to the environmentally-focused settlement provisions, because of the Clean Diesel litigation industry learned that "complying with environmental regulations matters and that violating them is costly." (25) It has now been dramatically demonstrated that violating environmental regulations to obtain business advantages can invoke devastating legal and financial consequences, and that stock markets can provide financial incentives for firms to act in an environmentally conscious way. (26) Aggregate litigation thus empowered stock markets as a corporate governance mechanism for environmental compliance. (27)

   The Clean Diesel litigation made more progress towards addressing our societal triple-crisis than many previous efforts combined. In addition to securities-fraud, consumer class actions, and the MDL device used in Clean Diesel, aggregate litigation devices also involve claims that address mass torts, environmental disasters, antitrust claims, common law claims, and regulatory violations. (28) These claims pursued in the aggregate attain essential environmental enforcement, protection, and justice.

2. OVERVIEW OF AGGREGATION DEVICES

   Aggregate litigation is an important and dynamic area of law. It utilizes many aggregate devices, including class actions under the Federal Rules of Civil Procedure and transfers pursuant to the multidistrict litigation statute. (29) This Part breaks down the critical components within the class action aggregation device as it pertains to environmental law and concludes with a brief discussion on the factors within multidistrict litigation that make it one of the most important aggregation devices in the federal system today.

   1. Class Actions

      The federal system and nearly all state systems permit class actions. (30) This Chapter focuses on federal class actions, which abide by Rule 23 of the Federal Rules of Civil Procedure (Rule 23). (31) Courts generally require that the proposed class representatives satisfy four threshold requirements to achieve certification: (1) the existence of a definable class; (2) the presence of at least one representative who is a member of the class; (3) the existence of a live claim; and (4) the existence of standing under Article III of the Constitution. (32) Also, the proposed class representatives must satisfy all the requirements of Rule 23(a)--numerosity, commonality, typicality, and adequacy--along with the requirements for one of the three subdivisions of Rule 23(b). (33) Rule 23(e) and (c)(4) are effective provisions within Rule 23 that optimize the effectiveness of aggregate litigation.

      1. Rule 23(a)(l-4): Prerequisite Requirements for Class Certification

         Failure to satisfy any of the four federal class action requirements under Rule 23(a) is fatal to class certification. (34) "Numerosity" under Rule 23(a)(1) provides that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if... the class is so numerous that joinder of all members is impracticable." (35) "Adequacy" under Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interest of the class." (36) The courts seek to uncover conflicts of interest between class representatives and the class they seek to represent, and analyze the class...