Climate change regulation and litigation: a "lost decade" of controversy and confrontation.

• Author: Faulk, Richard O.

This article originally appeared in the January 2013 Environment and Energy Law Committee newsletter.

"Whether one believes, as a matter of science, that the problem of climate change is real or imagined, exaggerated or understated, there is no doubt that the storm has already broken--and those legal issues present real risks and real benefits that can only be ignored at our clients' peril." (1)

These words commenced our first article regarding climate change. In it, we foresaw "stormy weather ahead," but we attempted to begin a "constructive dialogue" about the issues raised by global climate change. Today, we can look back over a decade of controversy and confrontation regarding climate change in virtually all legal forums and institutions--and say, without hesitation, that the issue of global climate change has truly experienced a "lost decade."

Whatever one's perspective may be regarding the issue, the controversy remains unresolved in virtually every governmental body where it has been addressed. In regulatory agencies, in the halls of Congress and state legislatures, in state and federal trial and appellate courts, including the US Supreme Court, in international treaty negotiations and in the United Nations itself--the science and regulation of climate change continues to be a controversial--but unresolved--subject.

The Earth's climate is a global public resource. That principle is axiomatic. No single person or nation has a divisible "ownership" interest in the atmosphere, but all people everywhere have an interest in its preservation and resources. Since every greenhouse gas ("GHG") emission cumulatively contributes to the overall impact on the atmosphere, nations and peoples are affected by an incalculable array of factors--only some of which exist as persons who can be regulated and held responsible for contributing to the global warming phenomenon.

Many such persons live in societies that are either incapable--because of economic deprivation--or unwilling--because of adverse economic impacts or political inertia--to reduce emissions in proportion to their respective contributions to the problem. On the other end of the spectrum, even if relatively affluent countries reduce emissions substantially, they will still have to suffer from emissions released by countries that fail, for whatever reason, to match their progress. Thus, the planet remains in "gridlock" regarding climate change--even when it comes to measures needed to adapt to warming temperatures, such as those necessary to assist Pacific islanders increasingly threatened by rising seas.

Finally, nations which are sufficiently prosperous to embrace climate change measures are now afflicted by a prolonged and severe economic recession. Even before the recession began in 2007-2008, many developed countries were concerned that unilateral reductions in greenhouse gases would significantly harm the economies of participating nations--in exchange for uncertain benefits. As the economic crisis deepened, political and economic incentives for unilateral greenhouse gas reductions became even less popular. Even when large emitters such as the United States impose regulations by administrative measures, as opposed to Congressional statutes, the regulations are vigorously opposed--and they are often delayed or diluted substantially.

At such times, it seems appropriate to survey the history of this frustrating controversy, and to comment, however briefly, upon what, if any, resolution can be forecast for the future. Although the limited space available here is not sufficient for an exhaustive review, we will survey selected issues that illustrate the controversy's confrontational history--a history that, despite deep concerns, extraordinary efforts, and tremendous costs, has achieved little, if any, true benefits for the global environment.

Congress appears hopelessly deadlocked on the issue, thereby, leaving it to the Obama Environmental Protection Agency ("EPA") to chart and navigate the course our county will follow. This, however, is a far cry from five to seven years ago when a handful of state-sponsored suits were leading the charge asking the judiciary to be in charge of regulating climate change after the Bush EPA concluded that the Clean Air Act ("CAA") did not give it authority to regulate GHGs. At the same time, a handful of private suits were asking the judiciary to award massive damages under the federal common law for alleged climate change weather-related harms caused by Hurricane Katrina and receding sea ice. Now, in the wake of the Ninth Circuit's panel decision affirming the dismissal of Native Village of Kivalina v. ExxonMobil, (2) it is time to look back, recap, and reflect on this issue.

When we first began writing about climate change, the U.S. Supreme Court had just issued its landmark holding in Massachusetts v. EPA, (3) ruling that despite the EPA's arguments to the contrary, it has the authority to regulate GHGs as "air pollutants" under the CAA. (4) At that tame, we were not presuming to offer comprehensive solutions but summarizing the issues, identifying questions and laying the foundation for a constructive dialogue about the legal issues raised by global climate change. We begin this reflection by setting the stage in Act I of this unfolding drama.

1. The Way We Were

   1. The Kyoto Agreement

      When the last millennium was closing, many did not believe that current global warming trends were significant or relevant to the long-term survival of life on Earth. They also did not believe that international efforts, such as the Kyoto Agreement, to reduce GHGs would be effective. The public's perception was also jaded because early "greenhouse politics" suffered from a tendency to exaggerate when making proclamations based on what was termed "scientific certainty." Many people questioned their rationality and their agenda. Consequently, in 1997, the U.S. Senate unanimously passed a resolution effectively preventing the Kyoto Agreement's ratification because it did not contain commitments for developing countries. (5) Thus, even though President Clinton signed the treaty, it remained only a symbolic act and was never officially submitted to the Senate for ratification.

   2. The Impact of the IPCC's Report

      Despite the Senate's rejection of the Kyoto Agreement, an international coalition of scientists and policy advocates continued to make the case for collectively addressing climate change. The World Meteorological Organization ("WMO"), for example, established the Intergovernmental Panel on Climate Change ("IPCC") in the late 1980s. Recognizing a need for collective action, the United Nations Environment Programme supported the IPCC. Soon thereafter, their continuing effort was endorsed by the United Nations General Assembly. The IPCC was tasked with the review all available scientific information and the preparation of a report on climate change and its impacts--as well as the formulation of realistic response strategies. In 2007, the IPCC issued its fourth assessment report reviewing the science. The report proclaimed that the threat of harm from unregulated GHGs was real and undeniable, and strongly urged governments to reduce their GHG emissions. (6)

   3. Federal and State Efforts to Address Climate Change

      Although Congress and the Executive Branch did not address GHG emissions before 2007, some states took action. California took the lead by becoming the first state to require GHG reductions from new automobiles starting in 2009 (7) and the California Air Resources Board ("CARB") adopted regulations setting "fleet average greenhouse gas exhaust mass emission" for certain vehicles requiring emission reductions by 2016. (8) To accomplish this, California sought a CAA waiver from the EPA (9) and 14 other states accounting for 44 percent of the total U.S. population soon adopted California's regulations. EPA did not respond to California's waiver request, because it was waiting for the U.S. Supreme Court to decide Massachusetts v. EPA. California also passed what is generally known as "AB 32" in 2006 creating the first state level GHG cap and trade program using market-based incentives. (10)

      Other states--individually and regionally--also addressed climate change regulatory issues by setting GHG emission reduction goals, by adopting policies that promoted renewable energy and energy efficiency, and by developing statewide climate action plans. (11) Recognizing the efficiency of collective efforts, many states reached beyond their borders to create regional initiatives. These initiatives presently cover a broader geographic area, eliminate duplication, and help businesses by bringing greater uniformity and predictability to state rules and regulations." (12) They are designed to reduce greenhouse gas emissions, develop clean energy sources and achieve other goals. The following figure lists some of the regional climate change initiatives that were active in 2006. (13)

   4. Public Nuisance Litigation By States and Individuals

      Finally, litigants asked the judiciary to use the common law of public nuisance to regulate GHGs and to force emitters to pay damages for...