The Tortuous Road to Liability: A Critical Survey on Climate Change Litigation in Europe and North America

Author:Luciano Butti
Position:Contract professor of International Environmental Law at Padua University (Faculty of Engineering - Environmental Engineering)
WINTER 2011 32
Climate change is increasingly coming to the fore of pub-
lic debate. Since the adoption of the Kyoto Protocol on
December 10, 19971 and its entry into force on Febru-
ary 16, 2005,2 the international community has drawn increas-
ing attention to the topic of carbon dioxide (“CO2”) emissions.
The most recent international meetings and political trends, such
as the Copenhagen Climate Conference of 20093 and the latest
steps taken by the U.S. administration4 have resulted in perplex-
ity and criticism from many international commentators.5 Critics
have argued that “the Copenhagen Accord left most substantive
disagreements unresolved.”6 However, these recent develop-
ments have paved the way for a more informed debate on global
warming and environmental issues in general.7
The development of high-profile domestic and global dis-
cussion has also impacted the legal realm.8 In recent years, par-
ticularly since 2006,9 climate change lawsuits have increased in
quantity and in sophistication, presenting one of the newest chal-
lenges within the public law arena. The increased sophistication
of climate change lawsuits is a result of individuals who recog-
nize that climate regulation is an issue for both governments and
citizens to pursue. This mounting public awareness is evident in
U.S. climate change lawsuits. The vast majority of U.S. climate
change-related claims are based on individual or communal
actions meant to influence industrial and environmental policies
by promoting regulation and impact assessment. The U.S. focus
on “regulatory claims,” rather than on tort law claims, is mainly
due to the difficulties individual applicants face in showing locus
standi, in demonstrating direct liability of the entity sued, and in
finding a feasible pathway for redressability. On the other hand,
European climate change litigation has blossomed out of private
and governmental market-induced interests, as they have been
brought primarily with respect to “carbon market” issues. Such
a tendency has clearly been highlighted by European Union
Courts’ case law concerning the European Union Emissions
Trading System (“EU ETS”) Directive.
An additional method of linking climate change to legal
claims is the presentation of individual actions for damages
directly associated with global warming-related human rights
violations. Although important, such an approach to climate
change litigation is still far from being widely accepted by
courts. The decisions of the European Court of Human Rights
(“ECtHR”) and the Inter-American Commission on Human
Rights (“IACHR”) are not encouraging for the prospects of the
viability of human rights claims within the climate change con-
text. Therefore, it may be a long time before climate change liti-
gation becomes commonplace among individual rights claims.
This article provides an overview of the evolution of climate
change related litigation, highlighting the differences and simi-
larities between the U.S. and the European context. Addition-
ally, the article analyzes the future perspective of such claims
and concludes with a discussion concerning the possibility of
linking climate change to human rights.
Recent U.S. case law involving climate change demonstrates
that most successful claims concern existing regulations. This is
due to the specific aims that applicants pursue, using “existing
law—primarily environmental law—to force or block regula-
tory behavior” in response to policy failures.10 Thus what climate
change litigation has so far achieved is to effectively function as a
“gap-filling role” as defined by Professor Hari Osofsky.11
The results of a recent study relating to climate change cases
filed through the end of 2009 highlights that the courts play a
pivotal role in governance, especially with respect to partially
unregulated areas such as those of environmental law, regula-
tion, and responsibility.12 The same survey depicts a situation
where almost 40.5% of legal actions related to climate change
are brought to achieve “substantive mitigation regulation.”13
Therefore, most controversies are based on the willingness of
public bodies, states, companies, or non-governmental organi-
zations (“NGOs”) to urge for public intervention, focusing on
the necessity of the limitations of the promulgation of statutes
and policies establishing more stringent limits on emissions.
The 2006 U.S. Supreme Court case of Massachusetts v. EPA14
is probably the most distinguished example of a regulatory claim
by Luciano Butti*
* Luciano Butti, after serving as a judge in Italy from 1984 to 1997, joined B&P
Law Firm ( as a partner in 1998. He is a contract
professor of International Environmental Law at Padua University (Faculty of
Engineering – Environmental Engineering) and has taught several post-gradu-
ate courses organized by the Scuola Superiore S. Anna (Pisa), the Universities
of Bologna, Ferrara, Milano, Rome (Luiss), Verona, and Venice. In 2009, he
was appointed as a member of the Editorial Board of “Waste Management”
(International Journal of Integrated Waste Management, Science and Technol-
ogy – Elsevier) and of the Managing Board of the International Waste Working
Group. He is the author of several books and articles in English and Italian in
the fields of Italian, European, and International environmental law.
The author is grateful to Zeno Capucci for research assistance.
in the context of climate change.15 Twelve states, three cities, a
U.S. territory, and several NGOs claimed that the Environmental
Protection Agency’s (“EPA”) denial of a petition to address CO2
emissions was an arbitrary exercise of the EPA’s mandatory
function.16 Many petitions of the same nature17 have been filed
by public and private actors18 in state and federal U.S. courts
to promote enhanced regulation of carbon dioxide emissions
and to force public authorities to take positive action in limiting
CO2 pollution. Such pressures by both public and private actors
ultimately resulted in urging public authorities to reform the
existing regulatory framework, which happened mainly through
the modification of existing laws. Examples of these modifica-
tions may be found in some of the major environmental related
acts such as the Clean Air Act of 2000 (“CAA”) or the National
Environmental Policy Act of 1969 (“NEPA”).19 The aforemen-
tioned statistics uncontrovertibly demonstrate that in most cir-
cumstances “climate change litigation . . . represents an effort to
fill perceived regulatory gaps.”20
A second trend playing a dominant part in U.S. climate
change litigation is what Professors David Markell and J.B.
Ruhl have defined as “Procedural Monitoring, Impact Assess-
ment, and Information Reporting.”21 Claims that fall within this
category are similar in scope to those of the “regulatory claims
model” outlined above, as they seek to impose on public or pri-
vate entities new or more stringent obligations in monitoring,
assessing, or disclosing the environmental impact of activities
that such entities perform. An example of this type of claim is
the complaint for declaratory and injunctive relief that Green-
peace, Friends of Earth, and four U.S. cities filed against a pri-
vate investment corporation and a bank for the failure to produce
an environmental impact assessment when developing heavily
polluting overseas projects.22 Some fifty-five petitions of this
kind have been filed in U.S. courts with the same monitoring
and assessment purpose,23 representing the majority of the U.S.
climate change related claims.
Thirdly, tort claims, mostly public nuisance and negligence,
have also been brought in U.S. litigation.24 However, case law
concerning the violation of individual rights and liabilities rep-
resents only a small minority of the legal arguments brought
before U.S. judges when compared to the amount of cases aimed
at pushing authorities toward a more efficient, large-scale regu-
lation of CO2 emissions.25 Although tort law as a basis for cli-
mate change challenges has advanced from a situation in which
“such cases were . . . derided as frivolous long shots that would
be shot down quickly”26 to one in which more reliance is placed
in claims of individual harms from CO2 emitters, such claims
have yet to result in fully successful outcomes.
The difficulties complainants encounter are numerous when
seeking redress of environmental wrongs linked with carbon
emissions through tort actions.27 The primary hurdle for appli-
cants is demonstrating substantial interest for standing.28 The
“classic” U.S. theory of environmental locus standi does not fit
the peculiar requirements of climate change.29 Climate change
usually does not entail the existence of a specific natural fea-
ture (e.g. a river or a forest) which human behavior is about to
despoil or endanger. On the contrary, climate change stems from
a multiplicity of sources and affects different aspects of the envi-
ronment including: arctic melting, rising sea-levels, and disap-
pearing endangered species due to changed weather conditions;
these are merely examples of the numerous, yet unpredictable,
consequences of greenhouse gas emissions in the atmosphere.30
Since it is difficult to identify the specific harms that may affect
the environment and the specific species that are at risk of being
endangered, it is that much more difficult for a judicial panel to
grant standing to the plaintiffs.31
The most difficult standing-related hardship that applicants
must face when filing emissions-related court claims is proving
an emitter’s direct responsibility. It is often argued that there
are not a definitive number of entities liable for climate change,
or that, on the contrary, this number is too great. Scholars have
tried to overcome such hurdles by applying innovative theories
on climate change liability,32 some of which aim to establish a
link between local causation and local consequences.33 These
doctrines may prove successful in those cases where the dam-
ages at stake are clearly identifiable (and, therefore, the obstacle
of locus standi has already been surmounted) and where such
damages occur in areas where major emitters directly operate.
Also, the application of the environmentally based precaution-
ary principle to tort litigation may provide a clearer basis for
allocating liability, thereby providing a reverse burden of proof
under which “economic actors are liable unless they can prove
that their activities are environmentally harmless.”34 Such a
principle though, despite having been frequently recognized
as a “general principle of international law,”35 has not yet been
accepted by U.S. courts, so that future applications within the
United States still appear highly improbable.
However, even if these doctrines may sometimes prove suc-
cessful, applicants may not always find the road to redress clear
of impediments since “there is at present no international liabil-
ity framework directly applicable to climate change-related dam-
age.”36 This is demonstrated, for instance, by the unfortunate
outcome of Connecticut v. American Electric Power Company,37
in which plaintiffs unsuccessfully alleged infringement by six U.S.
power companies (alleged to be major polluters with respect to car-
bon dioxide emissions) of federal and state public nuisance law.38
Although the decision was reversed by the U.S. Court of Appeals
for the Second Circuit,39 the District Court decision represents a
valuable example of an approach that is still frequently adopted by
U.S. courts. Even if it were proven beyond a reasonable doubt that
climate change-related damages had actually occurred, it would
nonetheless be difficult to identify the entity liable for damages.40
Finally, there is one other barrier to justiciability which
may be the most difficult to overcome. The “political question
doctrine” permits judges to defer climate change questions for
political consideration reason.41 The doctrine highlights the fact
that climate change concerns are more appropriate for the leg-
islative branch of the government than for the judiciary.42 The
original District Court’s decision in Connecticut v. American
Electric Power Co. aligned with this doctrine,43 which is now at
the center of the American debate.44
WINTER 2011 34
Nevertheless, tort claims have attracted a lot of attention
from the public. Many “liability” actions result in widespread
discussion. Some of the most renowned examples include the
Inuit Circumpolar Conference Petition, which will be further
examined below,45 or the Hurricane Katrina case,46 in which
victims of the Katrina hurricane sought compensation from CO2
emitters for loss of private property and use of public property.47
In light of the above, it can be concluded that the U.S.
approach to climate change litigation has been primarily based
on regulatory claims. Although it is debatable whether the CAA
is the most suitable instrument for addressing such problems,48
it is nonetheless clear that judicial rulings cannot substitute for
robust and stringent policies on global warming and carbon
emissions, and that the “abdication of congressional responsibil-
ity” feared by some commentators should be avoided.49 Despite
the fact that many, even within Congress, applauded the initia-
tives undertaken by the Supreme Court, viewing them as ways
to enact CO2 controls without directly taking responsibility for
them, it has been noted that such ceding of legislative power to
non elected litigators and judges may ultimately endanger the
principle of representative democracy.50
European climate change litigation has differed from that
of the U.S. mainly because of the diverse and less homogeneous
framework that characterizes Europe. Each European state tends to
tackle domestic issues, including those related to the environment,
with a unique and cultural-specific approach, not only from a legal
perspective, but also from political and cultural points of view.
To identify a common European trend, it is necessary to
reference the supranational political framework provided by the
European Union (“EU”) institutions, which have been far-sighted
in enacting a thorough regulation of greenhouse gas emissions.
When analyzing EU climate change policies, recall that the EU,
which was born out of the ashes of a purely economic entity,51
is facing a difficult process of integrating political, military,
financial, and cultural aspects.52 This process is ongoing, with
many purported goals still unachieved, and the road to further
unification seems at present tortuous and uncertain.53 Although
important steps have been taken to allow individuals to use the
European Union Foundation Treaties, which include the defense
of individual subjective rights,54 when European Union litigation
is involved (the Luxembourg-based Court of First Instance and
European Court of Justice) the concerns of applicants and defen-
dants are arguably of a purely economic nature.55
Directive 2003/87/EC established a greenhouse gas emis-
sion allowance trading system within the Community56 com-
monly known as the Emissions Trading Scheme (“ETS”),57
which fixes a number of allowances for the quantity of CO2 that
can be emitted by a single Member state over a particular period;
the level of emissions in such period shall then “be equal to the
established cap.”58 Under the ETS, Member states may buy and
sell allowances, thereby creating a supply and demand model
that forms a basis for the European carbon market.
As a result, carbon market litigation has ensued, resulting in
a considerable number of proceedings before the Luxembourg
Courts, which have been conceptually divided into the follow-
ing three categories:59 challenges to the validity of the Direc-
tive,60 infringement proceedings,61 and challenges to decisions
of the European Commission on the National Allocation Plans62
designed by Member states for re-allocating the allowances
to national installations.63 The case of Abraham and Others64
slightly detaches itself from this categorization since the appli-
cants asked the European Court of Justice (“ECJ”) to interpret
the European Environmental Impact Assessment Directive
(85/337/EEC) so that restructuring of the Liège-Bierset Airport
could be included within the definition of “project” set out in
the directive, and the environmental impact assessment could be
considered mandatory for the restructuring.65
Although many claims have been brought with respect to
carbon market issues, regulatory claims are similarly predomi-
nant in Europe. Even the abovementioned case of Abraham and
Others, although directly linked to the impact of potentially pol-
luting works on the well being of a community, was aimed at
triggering inclusionary interpretation by the ECJ of a specific
regulation.66 Evidently, little room is left for individual applica-
tions aimed at recovering damages suffered as a result of global
warming and, therefore, linked to CO2 emissions. Currently
“EU ETS litigation is not concerned with the impacts of climate
change . . . but rather the finessing of a new market mechanism
from the perspective of key market actors within the established
confines of EU law.”67
The implications of this mainly regulatory approach to cli-
mate change litigation are even worse for Europe than they are
for the U.S. Although the U.S. carbon emissions framework is
in dire need of further regulation,68 and though litigation may
not be a completely adequate substitute for legislative control,
the benefits of litigation far outweigh the drawbacks of total
inaction. In Europe, where the ETS is the core of the carbon
emission regulatory framework, climate change related claims
are primarily concerned only with the applications of such a
scheme.69 The influence of the resulting jurisprudence thus ends
up being considerably more limited, and the possibilities of evo-
lution more scant.
In addition, other criticisms may arise. Firstly, as has
already been mentioned, regulation is not considered by some
as an appropriate task for judges. Even though such an assertion
is debatable, it will always be difficult for counter-arguments to
prevail, even from a theoretical standpoint.70 It may be argued,
for instance, that the strict “separation of tasks” theory, which
some British judges are already accustomed to,71 is often sup-
ported by governments, entities, and courts for nothing but spe-
cious reasons.72 Such arguments, though, appear particularly
difficult to prove, and the “spatial separation of competence
theory” remains difficult to rebut.73
Secondly, once a regulatory mechanism has been success-
fully implemented, it may not suffice on its own to reduce the
effects that greenhouse gases have on the environment.74 As
Philippe Cullet argues, “[I]t cannot be expected that the Climate
Change Convention, the Kyoto Protocol, or any other protocol .
. . would be sufficient to effectively mitigate global warming so
as to avert the need for adaptation . . . .”75 In other words, the
EU ETS Directive, as well as the other international instruments
mentioned by Cullet, should be supported by a more complete
framework of policies (for instance, liability schemes applicable
at the international level), in order to be more effective at pre-
venting—or at least in limiting—climate change.
Thirdly, a lack of political willingness to attain a stricter lia-
bility regime for ecological damages exists. The European Envi-
ronmental Liability Directive, which entered into force in 200976
with the purpose of harmonizing the concept of pollution and the
reinstatement of regimes throughout the region, has been until
now heavily criticized for not having provided Europe with the
expected uniformity with regard to liability for ecological dam-
ages.77 Similarly, the 1993 Lugano Convention on Civil Liability
for Damage Resulting from Activities Dangerous to the Environ-
ment,78 which established tougher rules for liability for environ-
mental damages,79 has not yet been ratified or entered into force.80
The above analysis clearly does not favor a bright future for a
comprehensive civil liability regime for damages stemming from
carbon dioxide emissions.81 The outcomes of the efforts made
by applicants in the human rights law arena are not any more
Recent attempts to link climate change claims to human
rights principles have not achieved any revolutionary outcomes.
While several human rights-based petitions alleging climate
change damages have been filed in international or regional tri-
bunals, none of them has yet come to a completely favorable
conclusion for the applicants.
The Inuit petition filed at the IACHR,82 by far the most
famous case in which a human rights-focused body addressed
climate change, featured applicants seeking “relief from human
rights violations resulting from the impacts of global warming
and climate change caused by acts and omissions of the United
States.”83 The action was brought against the U.S. for being the
largest emitter of greenhouse gases and because, according to
the applicants, it continually refused to undertake serious efforts
to reduce emissions.84 The IACHR rejected the petition, holding
that the information provided by the claimants did not enable the
Commission to determine whether the alleged facts entailed a
violation of the rights protected by the American Declaration of
the Rights and Duties of Man.85 Even though a subsequent hear-
ing could be held by the IACHR focusing on “the right to use
and enjoy property; the right of peoples to enjoy the benefits of
culture; and the rights to life, physical integrity, and security,”86
no further action has been taken.87
The Inuit petition outcome may sound surprising, especially
in light of the fact that the IACHR had previously upheld indig-
enous people’s claims related to violations of rights analogous
to those mentioned in the petition.88 However, the Inuit peti-
tion distinguishes itself from other indigenous communities’
legal actions because of its peculiar liability-related aspects. It is
difficult to establish direct links of causation between emitters,
no matter how big they are, and damages when climate change
is involved. In addition, it can be argued that a decision holding
the United States responsible for arctic melting and other dam-
ages related to CO2 emissions would have ended up being too
big of a step, providing legal basis for claimants all around the
world to sue Western industrialized countries for sea-level rise,
hurricanes, flooding, and other effects of climate change. It is
undisputable that politically revolutionary decisions have to be
balanced with political counter-interests that cannot be set aside:
therefore, justices and commissioners tend to be cautious before
allowing potentially destabilizing claims to succeed.
In Europe, claimants have not been any more successful. The
ECtHR, based in Strasbourg and acting within the framework of
the 1951 European Convention of Human Rights (“ECHR”),89
is renowned for being the most important tribunal for assessing
human rights claims in Europe and one of the most efficient civil
rights monitoring bodies in the world.90 However, the area per-
taining to environmental damages is a partially neglected area in
the ECtHR’s case law: successful claims in connection with the
environment have so far been grounded mostly on Article 8 of
the ECHR on protection of private and family life, broadly inter-
preted so as to include interferences with individuals’ well-being
caused by public nuisance and environmental damage.91 In the
context of violation of property rights,92 the Court has also rec-
ognized that “the environment is a value in itself in which both
society and the public authorities take keen interest.”93 Although
the ECtHR has recently begun to consider the precautionary
principle, while assessing claims on unlawful interference on the
applicant’s right to a healthy life,94 there are several obstacles
that impede climate change-related claims from being justiciable
within the ECHR framework.
First, for a claim to succeed, applicants must demonstrate
a concrete interference of their rights beyond all doubt.95 Given
that the Convention does not provide for an express right to a
safe and healthy environment, whether the latter is included
within the scope of Article 8 (the right to private and family life)
or Article 1, Protocol 1 (the right to peaceful enjoyment of pos-
session) of the ECHR, is a matter of interpretation. In light of
the abovementioned case law, this hurdle may not seem insur-
mountable. However, climate change claims are different from
the classic “environmental claims” brought before the ECtHR
because in the former no explicit link between emissions and
damages can be easily demonstrated.96
Second, in the unlikely case of an incontrovertible causal
relationship between greenhouse gases and local damages in
Europe, the “margin of appreciation” doctrine could serve as
a convenient tool for the ECtHR judges to defer the matter to
the national regulatory level.97 In short, once a private or pub-
lic entity has satisfactorily demonstrated that domestic law on
greenhouse gas emissions has not been infringed upon, the
Court could decide to leave this sensitive area of judgment to the
discretion of national Member states’ authorities (legislators and
judges), thereby abiding by the Court’s subsidiary role.98
WINTER 2011 36
It has been recently argued that the ECtHR should address
climate change within the scope of the right to property, namely
that of protecting private low-carbon investors against risks of
excessive state interference through regulatory changes and the
imposition of heavy financial burdens.99 This innovative and prac-
tical approach is proof that there are strong countervailing inter-
ests (namely, those of investors and corporations) that should be
balanced with the perceived need of establishing the civil liability
of corporations and emitters. These countervailing interests are
worth considering if their aim is “stimulat[ing] the flow of private
capital in the implementation of low-carbon investments.”100
In other fora, more attention has been drawn to the human
rights implications of climate change. For example, in Gbemre
v. Shell101 the Federal High Court of Nigeria held that gas flar-
ing, an unconstitutional practice in breach of the fundamental
human right to health, also contributes to adverse climate change
as it emits carbon dioxide.102 The case is particularly important
because it is “one of the first where a national court held that
climate change, like other environmental issues, may implicate
human rights.”103 However, the Nigerian judges’ conclusions on
climate change are not final and do not address global warming
directly since gas flaring was the real underlying issue in the case.
In light of the above, it is clear that counter-interests
have thus far prevailed over the commitment of states to take
a strong standpoint against violations of fundamental human
rights caused by human-induced global warming. Arguments
against linkages between climate change and human rights law
have been brought on several grounds, including the idea that
international human rights actors and tribunals should prioritize
other emergencies (which are also depicted as easier to cope
with in legal terms) and concerns relating to the current trend
of excessive anthropocentricity under which climate change is
currently being approached.104 The most convincing explana-
tion of the scant success obtained by climate change petitions
in human rights fora seems to be, however, the one which links
together hypothetical favorable judgments and their potential
consequences, and which takes into account the countervail-
ing economic interests of major public and private emitters.105
The unwillingness of domestic tribunals throughout the world
to acknowledge the existence of “environmental refugees” (who
often flee from their countries because of the consequences of
climate change) and to grant to such migrants the state-onerous
refugee status is clearly another side of the same story.106 In this
sense, the obstacles that prevent human rights tribunals from
intervening directly in the climate change issue are similar to
those that actors seeking redress in domestic tort actions have
Notwithstanding the recent developments of the environ-
mental liability doctrine, which seems to be undergoing a pro-
cess of strong “internationalization,”107 it can be concluded
that the road to clear and convincing guidelines for establish-
ing liability in cases of climate change-originated damages still
appears to be long and tortuous. Even those authors who have
tried to provide climate change litigation advocates with a “more
realistic understanding of the scientific reality of causation” that
“will suitably address climate change”108 have had to deal with
the fact that the proposed solution of making recourse to “proba-
bilistic causation” still leaves several problems unsolved.109
Moreover, all the proposed “technical” solutions for estab-
lishing airtight causational links tend to overlook the political and
institutional problems underlying the task that courts should per-
form in relation to climate change. As it has been argued in this
article, there is a lack of commitment by governments, judges, and
other public and private multinational actors to allow the courts
to take over the role, which many see as best left to domestic
and international regulators. Should a court provide leeway for
claimants to obtain redress for damages not strictly linked to local
infringements, more petitions would proliferate and the conse-
quences on the international equilibrium would be immense.
The scenarios discussed may be satisfying to those who are
“skeptical that tort litigation will be an effective way to com-
bat climate change.”110 However, from a different standpoint,
this “skeptical” approach appears to be misplaced as it tends to
confuse the regulatory function with that of assessing damages.
While on the one hand it is difficult to rebut the critiques that
regulation should be left to the government, on the other hand
one could object that the “skeptical” approach would sound
more reasonable if applied to regulatory claims, which have
proved to be the most successful up to now. On the contrary,
establishing standing, liability, and redressability is an appropri-
ate task for the judiciary to carry out.111
Civil liability is still far from taking root in the climate change
litigation context for different reasons. They are grounded on
the far-sightedness that judicial panels have so far demonstrated
in dealing with this area of litigation. Judges are often conscious
of the vast, wide-ranging consequences (involving, inter alia,
economic, energetic, developmental, and migratory issues) that
holding an American or European actor responsible for damages
occurring thousands of miles away would entail in legal terms.
Consequently, before innovative liability principles are estab-
lished, decision-makers, such as national legislators, must ask if
the climate change litigation floodgates are ready to be opened.
Endnotes: The Tortuous Road to Liability
Kyoto Protocol to the United Nations Framework Convention on Climate
Change, Dec. 10, 1997, 37 I.L.M 22 (1998).
United Nations Framework Convention on Climate Change, 15th Confer-
ence of the Parties, Copenhagen, Den., Dec. 7-19, 2009, Copenhagen Accord,
U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010),
See Randolph E. Schmid, New Federal Climate Agency Forming, ASSOCI-
ATED PRESS, Feb. 8, 2010,
Endnotes: The Tortuous Road to Liability continued on page 82