Prospects for Climate Change Litigation

1. Prospects for Climate Change Litigation John Terry (Torys LLP) and Jeffrey B. Gracer (Sive, Paget & Riesel P.C.) April 23, 2007 8514121.1

2. I. The Constitution:Who has authority to regulate? CANADA • Responsibility for environment not defined in Constitution • R. v. Crown Zellerbach (1988) – federal law applies where matters inherently of “national concern” and not capable of provincial regulation alone • R. v. Hydro-Quebec (1997) – federal law applies where where criminal sanctions used • Potential constitutional challenge of federal Regulatory Framework for Climate Change?

3. I. The Constitution:Who has authority to regulate? UNITED STATES • Automobile emissions standards litigation • Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007) • Vermont’s greenhouse gas emissions regulations were not preempted • Central Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160 (E.D.Cal. 2006) • Absent an EPA waiver, California’s greenhouse gas emissions regulations were preempted by the Clean Air Act • Waiver of preemption under Clean Air Act for automobile emissions standards • California seeks waiver for greenhouse gas emissions standards (Dec. 21, 2005) • EPA denies waiver request (Dec. 19, 2007) • California petitions for review of denial (Jan. 2, 2008)

4. II. Using Courts to Influence Federal Governments to Regulate CANADA • Friends of the Earth I (May 2007) – ENGO Friends of the Earth filed a judicial review application pursuant to CEPA seeking to require the federal Ministers of Environment and of Health to take action on emissions from Canada that may reasonably be anticipated to contribute to air pollution in the U.S. in violation of Canada’s international treaty obligations • Friends of the Earth II (September 2007)– Friends of the Earth brought a new application seeking to require the federal government to prepare a revised climate change plan containing measures to implement the Kyoto Protocol, as required by the Kyoto Protocol Implementation Act

5. II. Using Courts to Influence Federal Governments to Regulate UNITED STATES • Courts: • Massachusetts v. EPA, 127 S.Ct. 1438 (2007) • 12 states sue to prompt EPA endangerment finding (Apr. 2008) • Executive: • EPA failure to regulate following Mass. v. EPA • Pres. Bush statement re emission reduction goals (Apr. 16, 2008) • Congress: • Proposed legislation • Lieberman-Warner Climate Security Act (Senate bill)

6. III. Civil Actions Against Government and Business SOME CAUSES OF ACTION • Nuisance • Public Nuisance • Negligence FORM OF ACTION • Individual Action • Class action

7. III. Civil Actions Against Government and Business CANADA • Hollick v. City of Toronto (2001)– Supreme Court of Canada upheld a Divisional Court decision not to certify the class action of ~30,000 people living near a City of Toronto landfill • Pearson v. Inco (2005)– Ontario Court of Appeal certified a class action Inco in relation to alleged environmental damages caused by long-term emissions from a nickel refinery in the Port Colborne area • first Canadian class action to be certified for long-term historic environmental harm in any province other than Quebec • St-Lawrence Cement v. Huguette Barrette (2008) – On March 27, 2008, Supreme Court of Canada heard submissions re class action against St. Lawrence Cement for neighborhood disturbances resulting from the operation of a cement plant

8. III. Civil Actions Against Government and Business UNITED STATES • Judicial abstention from political questions • California v. GM, 2007 WL 2726871 (N.D.Cal. Sept. 17, 2007) • Connecticut v. American Electric Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005) • Kivalina v. ExxonMobil, (filed N.D.Cal. Feb. 26, 2008) • Federal common law public nuisance claim

9. III. Civil Actions Against Government and Business • Comer v. Nationwide Mut. Ins., 2006 WL 1066645 (S.D.Miss. Feb. 23, 2006) • Property owners suffering alleged losses as a result of Hurricane Katrina; sued chemical and oil companies for contributing to global warming • Barasich v. Columbia Gulf Transmission Co.,467 F. Supp. 2d 676 (E.D.La. 2006) • Louisiana residents sued oil and gas companies for actions contributing to destructive impact of Hurricane Katrina

10. IV. Cross-Border Actions U.S. Plaintiff v. Canadian Defendant • Pakootas v. Teck Cominco Metals (2006) • Ninth Circuit Court affirmed the validity of an EPA order issued to Teck Cominco, a Canadian company, with respect to pollution that originated entirely within Canada Canadian Plaintiff v. US Defendant • Edwards v. DTE Energy Company(January 2008) • Ontario Superior Court of Justice was directed to issue a summons to DTE Energy Company to face charges in Canada for atmospheric mercury emissions in Michigan that had allegedly harmed fish and fish habitat in Canada

11. V. Environmental Assessment/Impact Review CANADA • Pembina Institute for Appropriate Development, et al v. Attorney General of Canada and Imperial Oil Resources Ventures (March 2008) • the Federal Court of Canada remitted the environmental assessment for Imperial Oil’s proposed Kearl Oil Sands Project back to the joint federal/Alberta review panel that had recommended the Project be approved, requiring the panel to explain why the Project’s proposed mitigation measures, such as its intensity-based targets for reducing its GHG emissions, would reduce these emissions to a level of insignificance • Conservation Council of New Brunswick, et al v. Minister of the Environment, et al (filed December 2007) • judicial review of the actions of federal ministers in relation to the federal environmental assessment of the Irving Oil Eider Rock Project, alleging the ministers had not properly defined the project to be assessed and that proper public consultation had not occurred

12. V. Environmental Assessment/Impact Review UNITED STATES • Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 508 F.3d 508 (9th Cir. 2007) • Requiring analysis of cumulative impacts of greenhouse gas emissions in environmental review statement • Petition seeking CEQ standards for climate change analyses under NEPA (Feb. 28, 2008) • Developments at the state level • Massachusetts – MEPA Greenhouse Gas Emissions Policy and Protocol (Oct. 2007) • California, New York, Washington currently developing policies

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