Global Warming Litigation: Just a Bunch of Hot Air?

1. 2008 Annual AWMA Meeting Biloxi, Mississippi Global Warming Litigation: Just a Bunch of Hot Air? Michael D. Freeman August 7, 2008

2. Headlines

4. Climate Change Litigation? • Force Government Action • Massachusetts v. EPA • Center for Biological Diversity v. Kempthorne • Stop Government Action • Friends of the Chattahoochee v. Georgia Department of Natural Resources • In re Deseret Power Electric Coop • Regulate or Punish Private Conduct • Connecticut v. AEP, et al • California v. GM • Comer v. Murphy Oil • Village of Kivalina v. ExxonMobil

5. Force Government Action • Mass v. EPA (April 2, 2007) • CO2 is an “air pollutant” under CAA • EPA must set standards for car emissions if they endanger public health or welfare • Remanded to EPA to make endangerment finding

6. Force Government Action • Center for Biological Diversity v. Kempthorne • Suit to force U.S. Fish & Wildlife Service to list polar bear • Polar bear listed as threatened, not endangered

7. Stop Government Action • Friends of the Chattahoochee v. Georgia Department of Natural Resources • Georgia State Court Judge Thelma Wyatt Cummings Moore overruled state’s issuance of a PSD permit to construct 1200 MW coal-fired power plant. • PSD permits must contain "CO2 emission limitations based on BACT" because, "there is no question that CO2 is 'subject to regulation under the [Clean Air Act].'“ • BACT for a "fossil fuel fired steam electric plant" must include an analysis of alternative technologies

8. Stop Government Action • In re Deseret Power Electric Coop • EPA Region 8 issues PSD for waste-coal-fired generating unit in Bonanza, Utah • Sierra Club challenges permit before EPA’s Environmental Appeals Board • Argues Region 8 erred by failing to (1) require BACT for CO2 and (2) consider alternatives.

9. Regulate or Punish Private Conduct • Connecticut v. AEP • Suit by New York, Connecticut, et al against five major U.S. electric utilities • Charges utilities with contributing to the public nuisance of global warming • Seeks order capping emissions • Dismissed in 2005 as a political question • Appealed and argued in the 2nd Circuit

10. “The Framers based our Constitution on the idea that a separation of powers enables a system of checks and balances, allowing our nation to thrive under a Legislature and Executive that are accountable to the People, subject to judicial review by and independent Judiciary. Cases presenting political questions are consigned to the political branches . . . not to the Judiciary, and the Judiciary is without power to resolve them. This is one of those cases. [T]he issues presented here require identification and balancing of economic, environmental, foreign policy, and national security interests, ‘an initial policy determination of a kind clearly for nonjudicial discretion’ is required. Indeed, the questions presented here ‘uniquely demand single voiced statement of the Government’s views.’ Thus, these actions present non-justiciable political questions that are consigned to the political branches, not the Judiciary.” Honorable Loretta A. Preska U.S.D.C. for the Southern District of New York Connecticut v. AEP, 406 F. Supp.2d 265 (S.D.N.Y. 2005)

11. Regulate or Punish Private Conduct • California v. General Motors • CA AG sued auto industry seeking to hold them liable for damages from tailpipe emissions • Court dismissed concluding it was up to Congress to deal with the issue • On appeal to Ninth Circuit

12. Regulate or Punish Private Conduct • Comer v. Murphy Oil, et al • Class action on behalf of Mississippi residents against oil, coal, utility, and chemical companies • Claim industries emissions of GHGs contributed to global warming, which contributed to Hurricane Katrina’s creation and intensity

13. “While the plaintiffs argue that this case is not . . . about global warming, it really is. . . . It is an important debate, but it is a debate which simply has no place in the court, until such time as Congress enacts legislation which sets appropriate standards by which this Court can measure conduct, whether it be reasonable or unreasonable, and, more important, develops standards by which a group of people, we call them juries, can adjudicate facts and apply the law . . . It is clear from the complaint and clear from the arguments here today that what you are asking this Court to do is . . . to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is clearly non-judicial. . . . These policy decisions are best left to the executive and to the legislative branches of the government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.” Honorable Louis Guirola, Jr. U.S.D.C for the Southern District of MSComer v. Murphy Oil, et al

16. Before After

17. Before After

18. Balch & Bingham’s Gulfport Office

19. Regulate or Punish Private Conduct • Kivalina v. ExxonMobil • Plaintiff: Native Village of Kivalina, Alaska • Defendants: 24 of the nation’s largest oil and power companies: ExxonMobil, BP, AEP, Duke, Southern Company, et al • Filed: San Francisco, California • Defendants GHGs have caused Kivalina to fall into the sea

20. Native Village of Kivalina

22. Michael D. Freeman (205) 226-3432 mfreeman@balch.com Questions?