Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims

• Date: 01 September 2010
• Author: Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso

9-2010 NEWS & ANALYSIS 40 ELR 10845

C O M M E N T S

Challenges Plaintiffs Face in

Litigating Federal Common-

Law Climate Change Claims

by Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso

Kevin Gaynor directs Vinson & Elkins’ Washington, D.C., oce’s environmental practice and is Co-

Chair of the rm’s Climate Change practice. Ben Lippard is counsel and Maggie Peloso is an associate

in the rm’s environmental practice and a member of the rm’s Climate Change practice.

Since 2005, numerous plaintis have attempted to hold

both the energy industry and vehicle manufacturers

liable for the da mages they have experienced and will

experience a s a result of climate change. Proceeding under

common-law theories, particularly nuisance, these plainti s

generally allege that t he defendants t hey sue are major con-

tributors to greenhouse gas (GHG) emissions, which ulti-

mately lead to climate change a nd a myriad of a ssociated

harms ranging from increased coa stal erosion in A laska and

Massachusetts to decreased snowpack in California. W hile

the U.S. Environmental Protection A gency’s (EPA’s) recent

regulatory actions may preempt claims under federal com-

mon law, there is nothing in t he Clean Air Act (CA A)1 that

prevents future tort claims under state law.2 Consequently,

common-law climate change litigation is likely to continue in

the coming years. is Article addresses the challenges that

common-law climate change plaintis wil l face in litigating

their claims, particularly with respect to standing and justi-

ciability, proof of causation, and apportionment of damages.

I. Getting Into Court: Standing and

Justiciability

An initial hurdle for a ll climate change plaintis is the sat-

isfaction of both the constitutional and prudential sta nding

requirements. Plaintis must demonstrate both that they

have met the minimum threshold requirements of Article

III of t he U.S. Constitution and that none of the pruden-

tial st anding doct rines are implicated by their claims. us

far, the majority of common-law climate change litigation

in federal court has focused on this latter issue, as courts

struggle to determine whether climate change claims present

nonjusticible political questions. is section briey explains

the requirements to obtain standing and then summarizes

1. 42 U.S.C. §§7401-7671q (2007), ELR S. CAA §§101-618.

2. In fact, the CAA’s savings clause, 42 U.S.C. §7604(e), explicitly reserves the

rights of parties to bring claims under state law.

the analysis of the courts that have considered common-law

climate change claims.

A. Article III Standing

Meeting the basic requirements for Article III standing is the

essential  rst step for a litigant wishing to bring a claim in

federal court. Article III of the Constitution provides that the

courts may only hear actual cases a nd controversies.3 ere-

fore, the “irreducible constitutional minimum” to establish

Article III standing requires: (1) injury-in-fact; (2) a causal

connection between the injury and defendant’s conduct; and

(3)a likelihood that the plainti ’s injury will be redressed by

a favorable decision.4

e U.S. Supreme Court has dened “injury-in-fact” as

an injury that is concrete and particularized and actual or

imminent.5 e rst prong of this test is directed at separa-

tion-of-powers concerns a nd is intended to ensure t hat the

judicial branch does not hear the sort of generalized com-

plaints that are best addressed by the legislative branch.6

e actual and imminent injury requirement prevents the

court from granting relief for future harms that are specula-

tive in nature.7 e general scientic community, as repre-

sented by the Intergovernmental Panel on Climate Change,

has concluded not only that climate change harms are real

but also that anthropogenic GHG emissions are a cause of

these harms.8 Climate change plaintis can therefore cite to

numerous large-scale impacts that many scientists agree are

3. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 22 ELR 20913 (1992).

4. Id. at 560-61.

5. Id. at 560.

6. Massachusetts v. EPA, 549 U.S. 497, 518, 37 ELR 20075 (2007) (explain-

ing that both Baker and Lujan limit consideration to actual injuries to ensure

“proper adversarial presentation” of an actual case or controversy).

7. See Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983) (holding that plainti

who was injured when the LAPD applied a chokehold did not have standing to

challenge the chokehold policy and seek injunctive relief because there was not

a substantial likelihood that he would be similarly harmed again in the future).

8. I P  C C, C C 2007:

S R 37, 39 (2007).

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.