3-2009 NEWS & A NALYSI S 39 ELR 10231
the Natural Resources Defense Council, Inc. (NRDC). at
creative partnership expanded in 2001 when I opened my solo
practice in Newtown Centre, Massachusetts. In early 2002,
Connecticut Attorney General Blumenthal contacted me to
initiate what turned out to be the very fruitfu l discussions that
led to the ling of these landmark companion cases in 2005.
is chapter tells the story of how these global warming
lawsuits, still in their early stages, began. Although the cases
were both dismissed in September 2005 in a cursory ruling by
the district court, that ruling is on appeal and will be reviewed
de novo by the U.S. Court of Appeals for the Second Circuit.
I. The Science of Global Warming
A. Consensus Within the Scientic Community
e need to address global warming through a tort lawsuit was
supported by a clear scientic consensus that global warming
is being caused by huma n emissions of GHGs, primarily car-
bon dioxide (CO2).3 GHGs trap atmospheric heat by absorb-
ing and re-radiating energy that otherwise would escape into
space back toward the earth’s surface. A certain level of some
naturally occurring GHGs, including CO2, is necessary to
keep the earth warm enough to support life. But the burning
of fossil fuels (oil, coal, and natura l gas) gives o CO2 during
combustion as the carbon in these fuels combines with oxy-
gen in the air. And burning very large quantities of fossil fuels
gives o very large quantities of CO2.
e theory of anthropogenic global warming, or the
“enhanced greenhouse eect,” was rst advanced in 1896 by
Swedish scientist Svante Arrhenius, who hypothesized that the
burning of fossil fuels on a large scale would cause CO2 to
accumulate in the earth’s atmosphere and that the elevated
level of CO2 would trap enough atmospheric heat to increase
the surface temperature of the earth.4 More than 100 years
later, it has turned out that Arrhenius was right.
1. Intergovernmental Panel on Climate Change
In one of the largest and most ambitious scientic collabora-
tions in history, in 1988 the World Meterological Organiz ation
and the United Nations Environment Programme formed the
3. See I P C C (IPCC), T A-
, C C 2001: S R, S P-
(2001), available at http://www.ipcc.ch/pub/un/syreng/ spm.pdf [hereinaf-
ter IPCC, T A R]; S R. W, T D
G W (Harvard Univ. Press 2003), available at http://www.aip.org/
history/climate/; J H, G W: T C B-
(3d ed., Cambridge Univ. Press 2004).
4. See National Aeronautical & Space Administration (NASA), Earth Observatory,
On the Shoulders of Giants, Svante Arrhenius (1859-1927), http://earthobservatory.
(last visited Dec. 15,
Intergovernmental Panel on Climate Change (IPCC), open
to membership by the countries belonging to the two orga ni-
zations.5 e IPCC gathers, assesses, and summa rizes thou-
sands of studies on all scientic and technical aspects of global
warming. Hundreds of scientists from around the world who
are leaders in a diverse array of disciplines are engaged in t his
assessment process. Every few years, t he IPCC publishes the
results of this comprehensive assessment of the state of the
scientic k nowledge of global warming. Many of A merica’s
leading climate scientists play important roles in drafting
the periodic IPCC assessments. e IPCC is vita l because of
the interdisciplinary nature of the global warming problem.
Without the IPCC, no one would be collating a nd compar-
ing all of t he relevant warming trends around the world such
as, for example, changes in buttery habitat in California and
shrinking arctic sea ice around the North Pole.
By 1990, when the IPCC issued its rst assessment report,
Arrhenius’ thesis had been widely acknowledged as correct:
CO2 was building up in the eart h’s atmosphere from the com-
bustion of fossil fuels. e 1990 IPCC report brought the
rapid increase in CO2 levels to the public’s attention, projected
a signicant increase in global temperature during t he 21st
century, and predicted serious risks and harms from the rise in
temperature.6 Although the IPCC could not yet attribute 20th
century warming to human emissions, the future trends in
GHG concentrations and global climate were clear. Reacting
swiftly, in 1992, most nations of the world reached agreement
on the United Nations Framework Convention on Climate
Change (UNFCCC).7 e UNFCCC seek s “stabilization of
greenhouse gas concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference
with the climate system”8 and requires developed nations to
report periodically on their eorts to reduce emissions, indi-
vidually or jointly, to a nonbinding ta rget of 1990 levels.9 e
treaty recognizes and codies the requirement that the devel-
oped nations of the world make the rst round of emissions
reductions because it is largely their emissions that created the
problem. In June 1992, President George H.W. Bush signed
the treaty, which then sailed through the U.S. Senate on a
unanimous vote in October 1992, ma king the United States
the rst industrialized nation to ratif y the UNFCCC.
In 1995, the IPCC issued its Second Assessment Report,
in which it concluded that “the balance of evidence suggests a
discernable human inuence on global climate change.”10 is
conclusion constituted a major step forward in communicat-
5. For more information on the IPCC, see http://www.ipcc.ch.
6. IPCC, F A R, S A C
C R W G I, S P (1990).
7. UNFCCC, June 4, 1992, 31 I.L.M. 849, available at http://unfccc.int/2860.
8. Id. art. 2, at 9.
9. Id. art. 4, ¶ 2(b).
10. IPCC, S A R, C C R W
G I, S P, T S C C