The Rapid Evolution of Climate Change Law
| Publication year | 2007 |
| Pages | 38 |
| Citation | Vol. 20 No. 3 Pg. 38 |
Vol. 20, No. 3, 38. The Rapid Evolution of Climate Change Law
Utah Bar Journal
Vol. 20, No. 3
April 2007
Vol. 20, No. 3
April 2007
The Rapid Evolution of Climate Change Law
The Rapid Evolution of Climate Change
Law
by Gary Bryner
The scientific debate over the causes and consequences of
global warming likely will continue for years to come, as
scientists continue to explore a host of questions about how
climate change affects different regions of the world, how
current trends compare with historical patterns, and whether
the steady increase in carbon dioxide emissions will
translate into gradual warming or could, with the help of
feedback mechanisms, produce cataclysmic changes. In
contrast, the debate over whether to take some kind of action
to begin reducing the threat of disruptive climate change is
rapidly shifting from whether there will be a national
climate change regulatory policy and associated energy
policies to when those policies will be put in place and what
form they will take. While there is still much uncertainty in
climate change law and policy, the trajectory is clearly
toward regulating greenhouse gas ("GHG") emissions
As a result, the case is much stronger for governments and
businesses to take aggressive action to manage their carbon
emissions and related activities. Pressure is coming from the
threat of litigation, the likelihood of national legislation
within the next few years, and state and local climate
policies that are already in place. Some companies are
supporting national policies as a way to simplify the
challenge of having to comply with a variety of state
mandates. Shareholder and investment demands that companies
disclose their carbon liabilities and develop programs to
manage those liabilities effectively are growing
International pressure from European countries that are
seeking to comply with the Kyoto Protocol and negotiations
for a new global accord are also occurring. A wide range of
U.S. and multinational companies have concluded that
precautionary action to reduce the threat of climate change
is in their self interest and have developed voluntary
programs to cap and reduce GHG emissions. Michael Northrop
co-founder of the Climate Group, a coalition of companies and
governments committed to reducing GHG emissions, said,
"It's impossible to find a company that has acted
and has not found benefits."1
Litigation
Lawsuits are proliferating in the absence of federal
regulatory action and as a result of growing evidence that
the consequences of climate change are not just future
calamities but are already adversely affecting people and
property. Plaintiffs and others involved in these cases often
liken them to the early tobacco cases, initially derided as
improbable but eventually successful because of, among other
factors, tobacco company officials' acknowledgment in
internal documents of the health threat associated with
smoking that conflicted with corporate policy statements.
Climate change is beginning to surface in Utah litigation. In
a 2006 Utah Supreme Court case, Utah Chapter of the
Sierra Club v. Utah Air Quality Board, the Court ruled
that plaintiffs' affidavits alleging specific damages
such as health, decreased visibility, soil damage, and
property devaluation that would result from GHG and other
emissions from a coal-fired power plant that had received a
permit from state air quality officials was sufficient to
grant standing to plaintiffs to challenge the permit.2
The list below, taken from a compilation of these cases by
Peter Lehner of the New York state Attorney General's
office, illustrates the growing number of cases and range of
issues they raise.3 Some climate cases have been dismissed
for lack of standing on the basis that they raise political
questions. Cases where plaintiffs have been successful seek
to compel agencies to include climate change in assessing
possible environmental consequences of agency actions. One
key case to watch is the Supreme Court case concerning the
EPA's decision not to regulate GHGs under the Clean Air
Act, since a decision favoring the plaintiffs would compel
the agency to begin developing climate change regulations. A
second key set of cases are the nuisance cases brought by
states against large corporations that emit high levels of
GHGs. State officials have the resources to prepare these
complex cases and there are significant precedents in other
areas of environmental law for holding parties responsible
for damages despite only being one of many sources of
emissions, and precedents in other areas of law for dealing
with complex issues of causality. At minimum, these cases
will contribute to pressure for national climate legislation
and for industries to take actions to reduce their potential
exposure to legal action and to the accompanying negative
publicity.
Agency...
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