Global Climate Change Litigation

• Pages: 1-67

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Global Climate Change Litigation

JAMES L. ARNONE, BETH A. CO LLINS-BURGARD,

AND RYAN R. WATERMAN*

I. Introduction

Global climate change1 attributable to anthropogenic (human-

related) emissions of greenhouse gases is one of the most important

and widely debated scientific, economic, and political issues in the

world. Although some circles have considered the issue of global

climate change for more than 30 years, as recently as four years ago

the issue had no significant legal footprint in the United States. Since

then, however, the issue has exploded onto the legal scene, result-

ing in enormous social and economic shockwaves. Such an erup-

tion without an overarching federal statute addressing the issue is

unprecedented in U.S. environmental law. Instead, the legal frame-

work consists of a growing patchwork of overlapping federal, state,

and regional regulatory efforts and an increasing number of federal

and state cases that apply disparate legal theories to the global cli-

mate change issue.

Extraordinarily, the most powerful and popular tools aiding the

expansion of global climate change’s legal footprint have been the

oldest and most venerable environmental statutes. These statutes

include the federal Clean Air Act of 1970, the federal Endangered

* The authors wish to express their deep appreciation to Janice M.

Schneider, a partner in Latham & Watkins.

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Species Act, and the National Environmental Policy Act (and simi-

lar state statutes)—statutes that were enacted in the 1970s and that

have never before been used in this manner. Nonetheless, courts

have begun applying these statutes in novel ways that may make

the global climate change issue one of the most powerful tools in

environmentalists’ arsenal.

Global climate change is so new on the legal scene that the au-

thors cannot pretend to know how the legal landscape will ultimately

appear. Thus, the current state of global climate change litigation

lends itself to few conclusions other than that we can expect more

such litigation for at least several years to come. This chapter briefly

discusses the basic facts underpinning anticipated global climate

change effects, surveys selected efforts in the United States to ad-

dress global climate change through legislation and otherwise, and

provides a broad “snapshot” of the litigation we have seen to date

and litigation we expect to see more of in the future.

II. Global Climate Change and Its Anticipated Effects

Global climate change refers to changes in average global climatic

conditions, including temperature, wind patterns, precipitation pat-

terns, ocean salinity, sea levels, and storms. Global temperatures

are moderated by naturally occurring atmospheric gases, commonly

called “greenhouse gases” (GHGs), including water vapor, carbon

dioxide (CO2), methane (CH4), ozone (O3), nitrous oxide (N2O), and

chlorofluorocarbons (CFCs).2 These GHGs allow solar radiation (sun-

light) into Earth’s atmosphere, but prevent radiative heat from es-

caping, thus warming Earth’s atmosphere in the same manner that

glass traps heat from solar radiation inside a greenhouse.

Human-related GHG emissions have steadily increased since

the beginning of the Industrial Revolution. For example, atmospheric

concentrations of carbon dioxide have increased from “a pre-

industrial value [in 1750] of about 280 [parts per million (ppm)] to

379 ppm in 2005.”3 Increases in other GHGs, including methane

and nitrous oxide, also have been observed. “The global increases

in carbon dioxide concentration are due primarily to fossil fuel use

and land use change, while those of methane and nitrous oxide are

primarily due to agriculture.”4 In addition to GHGs, changes in the

amount of atmospheric aerosols, solar radiation, and land surface

properties also alter the energy balance in the climate system.5

Global Climate Change Litigation 3

The Intergovernmental Panel on Climate Change (IPCC)—which

shared the 2007 Nobel Peace Prize with former Vice President Al

Gore for its work on global climate change—issued four reports in

2007 on global climate change as part of its Fourth Assessment

Report on Climate Change. The IPCC Working Group I Report—

Climate Change 2007: The Physical Science Basis—concluded that

Earth is unequivocally warming, as evident from observed increases

in global average air and ocean temperatures, widespread melting

of snow and ice, and rising mean sea level.6 The IPCC also ex-

pressed “very high confidence” (illustrated as a 9 out of 10 chance)

that the global average net effect of the increase in GHG emissions

since 1750 has been causing global climate change.7 Although his-

torical records indicate that global climate changes have occurred

in the past due to natural phenomena, the IPCC has concluded that

the current climatic change appears to differ from past climate

changes in rate and magnitude.8

Some of the effects of global climate change that the IPCC re-

ported with “very high confidence” include impacts on the water

supply in North America’s western mountains that will exacerbate

competition for already overallocated water resources; impacts on

terrestrial biological events, including earlier onset of spring and

poleward shifts in plant and animal species ranges; species extinc-

tions; increased flooding, affecting millions more people every year

due to sea-level rise; and disturbances from pests, diseases, fire,

ocean acidification, increased ozone pollution, and heat waves.9 The

IPCC found with “high confidence” (8 out of 10 chance) that the

resilience of many ecosystems is likely to be exceeded this century

by an unprecedented combination of climate change, associated

disturbances, and other global change drivers (e.g., land use change,

pollution, overexploitation of resources).10 On May 15, 2008, Na-

ture published an article supporting and supplementing the IPCC’s

findings, concluding that “anthropogenic climate change is having

a significant impact on physical and biological systems globally

and in some continents.”11

Not all scientists agree with those conclusions. Several scien-

tists who worked on sections of the 2007 IPCC Report contest its

conclusion that human activities are a likely cause of global climate

change.12 On September 24, 2007, Czech Republic President Vaclav

Klaus made a speech to the United Nations arguing that science