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- Publisher
- Oxford University Press
- Copyright
- © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
- ISSN
- 0002-919X
- eISSN
- 2326-9197
- DOI
- 10.1093/ajcl/avy018
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Abstract
Introduction “Climate change, once considered an issue for a distant future, has moved firmly into the present.”1 Atmospheric and ocean temperatures are rising, “[p]recipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing.”2 The 2017 Climate Science Special Report describes the current state of scientific knowledge about U.S. and global climate change. The report concludes that “it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation.”3 Global data show that 2016 was the warmest year on record and the third consecutive year for record global average surface temperatures.4 In the continental United States, 2016 was the second warmest year on record, after 2012, with higher than average precipitation and fifteen climate-related disasters including drought, wildfire, floods, and severe storms, which caused losses of more than $1 billion.5 The emission of greenhouses gases (GHGs),6 which move about in the atmosphere, is a major cause of global climate change. GHGs absorb terrestrial radiation that leaves the Earth’s surface. Although GHGs “create the natural heat-trapping properties of the atmosphere” and are “necessary to life as we know it,” high concentrations of GHGs cause an increase in the Earth’s absorption of energy and the resulting increase in temperature referred to as global warming.7 Recent research identifies deadly effects of climate change, “one of the biggest global threats to human health of the 21st century.”8 If global GHG emissions are not reduced, heat waves will affect 74% of the world’s population by 2100. Even with drastic GHG reductions, almost half of humans will face deadly heat.9 In Europe, increasing temperatures will result in weather disasters, especially heat waves and coastal flooding, and a sharp increase in climate-related deaths by 2100.10 By 2050, climate change may affect nutrition in developing countries as rising temperatures reduce availability of plant proteins.11 Although a number of U.S. statutes govern human activities related to climate change, no comprehensive climate change legislation exists.12 Federal programs (including the Obama administration’s Climate Action Plan13), as well as regional, state, and local initiatives, promised to mitigate and adapt to the effects of climate change. Recent developments, however, have diluted federal efforts.14 For example, in March 2017, President Trump revoked significant Obama-administration climate change policies, including the Climate Action Plan and related strategies.15 This revocation and others that followed are likely to result in increased emissions and a failure to meet climate targets (e.g., energy efficiency, methane emissions).16 Significantly, in June 2017, the United States announced its withdrawal from the Paris Agreement,17 a decision that triggered international condemnation, as well as criticism from state and local governments and large corporations in the United States. In August 2017, the United States notified the United Nations of its intent to withdraw from the Paris Agreement as soon as the United States is eligible, unless it “identifies suitable terms for reengagement.”18 The U.S. withdrawal was characterized as a “severe backwards move and an abrogation of its responsibility as the world’s second largest emitter . . . when more, not less, commitment is needed from all governments to avert the worst impacts of climate change.”19 Despite this withdrawal, however, the United States could meet its Paris goals through the efforts of cities, states, and businesses.20 The global crisis of climate change has affected the practice of law.21 Indeed, in recent years, climate change has engendered “a rapidly building wave of litigation” in the United States.22 Although the judiciary is “a latecomer to the crisis that has worsened in the hands of the legislative and executive branches,”23 litigation can play a role in forcing government regulatory action and perhaps in providing remedies for harm from GHG emissions. As commentators observed, “[t]he president might root out climate policy from executive branch decision-making, but he cannot unilaterally remove the issue from judicial consideration.”24 This Report, guided by a questionnaire prepared for the Twentieth General Congress of the International Academy of Comparative Law, addresses the topic of climate change lawsuits and the individual. The questionnaire focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change or adaptation to its effects. It does not focus on legal persons, such as corporations and other legal entities. Of the hundreds of climate change cases filed in the United States, only a small number involve individual plaintiffs. Other cases involve environmental organizations that sue on behalf of their members, demanding mitigation or adaptation and sometimes damages for injury. To provide background, this Report first reviews possible causes of action to remedy climate change. It raises a number of difficult issues faced by plaintiffs in climate change litigation. The Report then reviews a number of cases brought by individual plaintiffs and environmental organizations against public and private actors. I. Climate Change Causes of Action: A Brief Overview Climate change litigation, defined broadly, is “any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts.”25 An empirical study identified 201 U.S. agency proceedings and court cases involving climate change up to 2010.26 Two types of issues were predominant: government agency responsibility to restrict GHG emission by rule or permit and government compliance with statutory requirements for environmental impact assessment in decisions to approve GHG sources.27 Most climate change litigation asked courts to decide “whether and how administrative agencies must take climate change into account in decisionmaking under existing statutes.”28 The “wave of litigation” continued, and by April 2018, a database of U.S. climate change litigation listed 857 “cases,” broadly defined.29 This database, linking to more than 3,094 documents, collects a wide variety of court cases, administrative actions, petitions for rulemaking, and other matters related to climate change. In some of the court cases in the database, climate change is not the main focus of the litigation. Claims represented in these cases arose under federal and state statutes, the Constitution, common law, public trust, securities and financial regulation, and trade agreements; a few cases involved climate change protesters and scientists.30 A. Regulatory Litigation A significant number of U.S. climate change cases are based on federal statutes and regulations, and many seek judicial review of administrative decisions. Both industry and environmentalists have sued. Industry cases often challenge government regulatory environmental standards. Suits by environmentalists often seek more stringent regulation for mitigation or adaptation. Under the Clean Air Act, for example, environmentalist suits include petitions to require agency rulemaking or other climate-related action and various challenges to administrative actions such as the granting of permits. Other cases challenge agency decisions under the National Environmental Policy Act31 and other federal laws for failure to consider GHG emissions and the impact of climate change. Some of these climate change lawsuits have led to stricter regulation—for example, EPA regulation of greenhouse gas emissions after Massachusetts v. EPA.32 State law claims, too, challenge administrative decisions, with environmental plaintiffs often seeking stronger regulation or challenging permits. Even more state law cases allege inadequate consideration of GHG emissions and climate change under state environmental impact laws. Cases that challenge inadequate adaptation measures sometimes rely on statutory and regulatory requirements or, in local cases, on local government ordinances. B. Common Law Although climate change litigation based on various federal and state statutes has predominated, a few plaintiffs have brought common law causes of action, albeit with little success.33 Most are tort claims for damages, and scholars have expressed views on the most effective causes of action in climate change lawsuits. Nuisance and negligence offer some possibility for success, with trespass and civil conspiracy considered less helpful. Strict liability is another possible remedy,34 and some cases rely on public trust. Nuisance law, with its focus on unreasonable injury, may be effective for some climate change claims.35 Public nuisance lawsuits are appropriate to abate “an unreasonable interference with a right common to the general public.”36American Electric Power, Co. v. Connecticut,37 however, limited federal common law public nuisance claims in areas governed by statute, holding that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”38 Common law nuisance claims based on state common law may continue to be viable.39 Relatively few plaintiffs have sued in negligence, but some commentators see negligence as the most appropriate tort cause of action.40 Typical requirements for a prima facie case in negligence—duty, breach of duty, proximate cause, and damages—raise significant challenges in cases against GHG emitters, especially in proving that emissions breached a duty to plaintiffs and that defendant’s emissions caused plaintiff’s injury. Negligence may be more successful in adaptation cases against local governments or property developers, but proving that the defendant’s alleged negligence, rather than an extreme precipitation event, was proximate cause of plaintiff’s harm may be difficult.41 Despite the existence of some climate change tort cases, tort law may not be an effective means to mitigate or adapt to climate change. As one influential scholar insisted, “climate change ill fits the existing tort paradigm.”42 Specifically, this scholar explained: Diffuse and disparate in origin, lagged and latticed in effect, anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible. Thus, courts will have ample reason—not to mention doctrinal weaponry—to prevent climate change tort suits from reaching a jury.43 Others agree that tort law is intended to solve private and local disputes, rather than big societal problems: Climate change and other so-called “collective action” problems simply cannot be addressed through the common-law tort system. That system was developed to address essentially private disputes, involving lines of fault and causation running directly between discrete parties. It was never intended, and cannot reasonably be applied, to allow a judge or jury to assess and allocate liability for any and all societal concerns.44 Legislatures, instead of courts, have “the authority and the capacity to consider and develop responses to [climate change], and only after a regulatory architecture has been established can judges and juries properly (and constitutionally) play a role.”45 C. Public Trust Beginning around 2011, plaintiffs have filed a number of cases relying, at least in part, on the public trust doctrine.46 Some are part of a global campaign, the Atmospheric Trust Litigation, connected with a nonprofit, Our Children’s Trust.47 Public trust, with roots in Roman and English law, requires governments to protect certain natural resources, “the gifts of nature’s bounty,” for present and future generations.48 Although the precise source of public trust in U.S. law is hard to identify, the doctrine is an ancient attribute of federal and state sovereignty with constitutional force.49 Plaintiffs (primarily young people) in recent public trust litigation insist that the government owes a fiduciary obligation to its citizen beneficiaries to protect public trust assets, including the atmosphere and water bodies affected by GHG emissions. State public trust law is evolving and may help to address climate change. A few courts have recognized the atmosphere as a public trust asset, and a few decisions have resulted in a court-ordered state GHG rulemaking.50 Sixteen states have ecological public trusts; five have indicated that their doctrines are evolutionary, responding to changing environmental circumstances; and two have explicitly extended public trust to the atmosphere.51 It is possible, therefore, that adaptation to climate change could “become an official state duty, geared to protecting as much of the public interest in and rights to natural resources and ecosystems as possible in light of climate change impacts.”52 Some scholars urge the use of judicial restraint to limit climate change litigation, relying perhaps on standing and the political question doctrine.53 Climate change, it is argued, is “a massive global and undifferentiated problem is one that must be addressed by the political branches of government—Congress and the EPA—and ultimately by international bodies.”54 Nonetheless, litigants have turned to the courts for relief from harm caused by GHG emissions. II. Significant Issues in Climate Change Litigation Courts, in general, accept the science of climate change55 and conclusions from the Intergovernmental Panel on Climate Change and others that anthropogenic emissions of GHGs are a major cause of climate change.56 The majority opinion in Massachusetts v. EPA, decided in 2007, illustrates: A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”57 Despite judicial acceptance of the science, climate change litigation raises a number of issues. Some arise in nearly all climate change litigation; others apply to specific types of lawsuits, depending on the cause of action and the parties. The following discussion focuses on major issues common to cases brought to mitigate or abate the effects of climate change. It does not attempt to identify every possible defense or obstacle facing plaintiffs in climate change cases.58 A. Standing Under Article III of the U.S. Constitution,59 which limits federal judicial authority to cases and controversies, plaintiffs who sue in federal court must have standing to sue; state courts also require standing. The doctrine of standing helps to ensure that the plaintiff has a personal stake in the controversy and that issues will be resolved in a “proper adversarial presentation.”60 The U.S. Supreme Court articulated the elements of standing in an environmental law decision: [T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.61 The injury required for standing is injury to the plaintiff, rather than to the environment.62 Only one plaintiff must have standing to invoke the jurisdiction of the court,63 and the plaintiff bears the burden of establishing the elements of standing.64 Nongovernmental and other organizations often bring climate change lawsuits on behalf of their members. These associations, the Supreme Court noted, have standing if “members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”65 The plaintiff’s injury in fact must be particularized and imminent. The Supreme Court noted that “[b]y particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”66 Some scholars have noted that plaintiffs must allege harms that are more than “generalized grievances shared by all citizens.”67 On a global scale, however, climate change “defies any notion of particularized injury.”68 The fact that harms from climate change are widespread may lead courts to conclude that those harms are generalized grievances, but in a leading standing decision, Massachusetts v. EPA, the Supreme Court indicated that widely shared risks do not minimize the plaintiff’s interest in the outcome of litigation.69 The plaintiff’s injury must be “fairly traceable” to defendant’s action. That is, the plaintiff must identify a causal connection between defendant’s behavior and injury caused by climate change. Given the nature of GHGs, plaintiffs are unlikely to identify a direct causal connection to a source of emissions.70 As the U.S. Court of Appeals for the Second Circuit indicated, the analysis of traceability in climate change cases might use “the standard by which a public nuisance action imposes liability on contributors to an indivisible harm,”71 a standard short of scientific certainty or proof of proximate cause, thus allowing “a substantial likelihood of causal contribution [to satisfy] the test of traceability” for standing.72 Redressability can also pose difficulties for plaintiffs: “If redressability requires successful elimination of the entire climate change problem, then no plausible suit could ever clear the standing hurdle.”73 Focus on redressing the harm suffered by the plaintiff makes satisfying this element more likely. As the Supreme Court noted in Massachusetts, climate change has enormous consequences; the plaintiff must allege that the requested remedy would slow or reduce global warming, but not that a favorable decision can relieve every injury.74 Two types of climate change cases illustrate issues of standing. One involves a challenge to government failure to consider the impacts of climate change in making decisions under the National Environmental Policy Act (NEPA),75 the Endangered Species Act (ESA),76 or other statutes. The other involves claims that the Clean Air Act77 or other statutes require the government to take more regulatory action to mitigate climate change.78 Some federal statutes, most prominently the NEPA,79 require the government to assess the environmental impacts of certain actions that affect the environment. Some courts denied standing to petitioners who challenged government failure to consider climate change in environmental assessments, in part because the effects of a proposed project were remote, rather than actual and imminent, and because their alleged harm (increased global temperature) was not particularized.80 More recently, in WildEarth Guardians v. Jewell,81 the D.C. Circuit granted standing to plaintiffs who established “that consideration of climate change would have impacted the decision that allegedly harms them, even if the harm is not itself related to climate change.”82 Plaintiffs’ aesthetic and recreational interests supported standing, and their challenge to the failure to consider climate change could be litigated along with other issues in the case.83 Indeed when plaintiffs allege that their procedural rights are violated (e.g., failure to consider climate change in a decision that results in harm to environmental interests), they may “tend to fare better when they can articulate an underlying injury for standing purposes that is not itself climate based.”84 Standing is relevant when a plaintiff challenges the government’s failure to regulate GHG emissions under federal pollution control statutes. Standing was a threshold issue in Massachusetts v. EPA.85 States, local governments, and private organizations alleged that the U.S. Environmental Protection Agency (EPA) had “abdicated its responsibility under the Clean Air Act (CAA) to regulate the emissions of four greenhouse gases, including carbon dioxide” from new motor vehicles.86 Petitioners asked the Supreme Court to determine whether the EPA had statutory authority to regulate GHG emissions and whether the EPA’s reasons for failing to regulate were consistent with the CAA. In its standing determination, the Court recognized that GHG emissions caused widespread harm, but held that the state of Massachusetts satisfied the constitutional requirements for standing. Massachusetts, as landowner and parens patriae for its citizens, faced injury from the risk of rising sea levels that could swallow coastal land. In terms of causation, carbon dioxide emissions from motor vehicles contributed significantly to GHG concentrations. The regulation of those carbon dioxide emissions would help to redress the injury suffered by Massachusetts and its citizens.87 The Supreme Court decision in Massachusetts was solicitous of states as plaintiffs, but some argue that the decision “weakened the traditional requirements for Article III standing,”88 especially causation and redressability. As one scholar suggested, private plaintiffs could cite the Court’s reasoning to support standing in similar cases involving injury from rising sea levels due to climate change, but subsequent cases have been “confusing” on standing.89 Nonetheless, standing decisions are difficult (and “often logically suspect”) in cases where the claim is that “a government action or inaction permits or leaves unregulated some activity” that contributes to climate change and its harm.90 B. The Political Question Doctrine The political question doctrine is, in a sense, a separation of powers issue, which applies in a federal law context. That is, it holds that certain types of issues are “committed to an elected branch of government and thus should not be heard in federal court.”91 The political question doctrine might be considered an aspect of prudential standing, beyond the requirements for Article III standing, that can “ensure respect for the separation of powers.”92 In Baker v. Carr, a leading political question decision, the Supreme Court articulated six attributes of a nonjusticiable political question and indicated that only if one of those attributes is “inextricable” from the dispute should the court dismiss the case as a political question.93 The Court indicated that cases that involve political actions or issues are not normally nonjusticiable political questions. Indeed, few Supreme Court cases have been found to present political questions.94 In the climate change context, the political question doctrine was analyzed in trial and appellate decisions in Connecticut v. American Electric Power, a case involving federal common law nuisance claims seeking abatement of carbon dioxide emissions from electric power corporations. The federal district court in New York noted that climate change was “patently political” and “transcendently legislative.” It focused especially on a Baker v. Carr attribute, “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” and determined that it needed a legislative policy determination before it could decide the global warming complaints. The district court therefore dismissed the case as raising nonjusticiable political questions.95 On appeal, the Second Circuit applied the Baker v. Carr factors, analyzing each factor in detail, and concluding that none of the factors applied. The dispute was not inherently political, and the court could hear a public nuisance suit. Therefore, the Second Circuit reversed.96 The Supreme Court granted certiorari, but did not reach the political question issue. Instead, the Court held that the Clean Air Act, which authorizes the EPA to regulate carbon dioxide emissions, displaced plaintiffs’ federal common law nuisance claims.97 In a more recent case alleging violation of constitutional and public trust rights, a federal district court analyzed plaintiffs’ claims in light of the six criteria in Baker v. Carr. The court concluded that the case did not raise a nonjusticiable political question, but involved a determination of whether plaintiffs’ constitutional rights had been violated. The court acknowledged, however, that if plaintiffs prevail, a remedy would have to be crafted carefully to avoid separation of powers issues.98 Some scholars urge the use of judicial restraint, using standing and the political question doctrine, to dismiss tort litigation in the context of climate change.99 But the political question doctrine does not apply often, and others believe that it was not intended to apply to nonconstitutional issues or, if it applies, should not preclude review of common law claims. That is, “courts should not hide from these issues behind the veil of the political question doctrine.”100 C. Displacement The doctrine of displacement, a separation of powers issue between the judicial and legislative branches,101 has prevented the resolution of some prominent climate change cases based on federal common law. A leading displacement decision is American Electric Power, Co. v. Connecticut (AEP),102 a federal common law public nuisance claim for injunctive relief, alleging that GHG emissions from power companies contributed to global warming. Federal common law applies only when Congress had not regulated, and Massachusetts v. EPA103 had held that the CAA authorized federal regulation of GHG emissions. The EPA had issued its “endangerment” finding104 and had begun the regulatory process. Therefore, the Court held “that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”105 The test for displacement of federal common law is “whether the statute ‘speak[s] directly to [the] question’ at issue.”106 Congressional delegation of authority to the EPA to regulate (or not to regulate) emissions displaced federal common law, even before the EPA promulgated regulations. The court stated clearly, however, that “EPA’s judgment . . . would not escape judicial review” through administrative law challenges in the federal courts.107 Although plaintiffs in AEP v. Connecticut sought injunctive relief, later cases indicated that displacement does not depend on the type of remedy. For example, Native Village of Kivalina v. ExxonMobil108 was a federal public nuisance claim against energy producers for money damages brought by an Alaskan village threatened by erosion from storm waves and surges attributed to global warming. Although federal common law nuisance could apply to transboundary pollution, the Ninth Circuit stated that common law “is subject to the paramount authority of Congress,”109 and that displacement of the common law right of action displaces all its remedies. Therefore, the court held, “AEP extinguished Kivalina’s federal common law public nuisance damage action,” just as it had extinguished the abatement actions at issue in AEP.110 The court’s conclusion was not affected by the fact that Kivalina sought damages for harms that occurred before the EPA established GHG standards. Congressional empowerment of the EPA triggered displacement, which applies even if the executive branch has not yet acted under its congressional authority. AEP v. Connecticut focused on federal common law, but did not reach the plaintiff’s state law claims. The Court noted, however, that “the availability . . . of a state lawsuit depends, inter alia, on the preemptive effect of the federal” CAA.111 Preemption requires a “clear and manifest [congressional] purpose”112 and is generally disfavored. Nonetheless, the complications of climate change cases mean that the EPA can more efficiently regulate GHG emissions.113 Recent cases allege harm to public trust assets, including the atmosphere and territorial seas. Public trust claims were not at issue in AEP v. Connecticut, and so far, the displacement doctrine has not been applied to public trust claims. Characterized as substantive due process claims, these public trust rights, which predate and are secured by the Constitution, are unique because the government obligation to protect the trust property “cannot be legislated away.”114 D. Causation and Problems of Proof As a threshold determination, standing requires a causal connection between the defendant’s conduct and the plaintiff’s injury, which must be “fairly traceable” to defendant’s action.115 On the merits, however, proof of causation may be a significant barrier to recovery, particularly in tort cases claiming damages for injuries caused by climate change. Plaintiffs must generally prove the connection between the defendant’s GHG emissions and plaintiff’s harm, as well as the extent of defendant’s contribution to that harm. The nature of climate change raises significant evidentiary problems. GHGs come from many sources; some have persisted in the atmosphere, and others are present-day emissions. Some emissions come directly from industry; others, less direct, come when many individuals burn fossil fuels. In fact, “the Intergovernmental Panel on Climate Change describes the key causal mechanism of climate change as ‘well-mixed greenhouse gases’ in the atmosphere. Such mixing obscures particular contributions and makes attribution of harm difficult. Yet the law generally assigns liability only when particular contributions can be related to particular effects.”116 Therefore, plaintiffs in climate change cases will face “enormous difficulties” in proving causation, especially “that emissions from a particular site, or group of sites, actually made their way into the atmosphere, and once there contributed to climate change, which then caused a specific event . . . and that provable damages ensued.”117 A 2017 international study asserted that “no court has yet found that particular GHG emissions relate causally to particular adverse climate change impacts for the purpose of establishing liability.”118 Moreover, plaintiffs face the additional burden of proving that defendant’s GHG emissions were a substantial factor in their particularized damages.119 Apportionment of damages among numerous sources of GHGs will raise particular challenges.120 Some tort causes of action (negligence, negligent nuisance) require proof that the defendant’s actions were unreasonable. Defendants who operated under a valid government permit or whose GHG emissions were not regulated may have acted reasonably. Moreover, in negligence cases, plaintiffs may not meet the requirement of proximate cause if, for example, flood damage was caused by extreme rainfall, rather than breach of duty by the defendant.121 Intentional torts (intentional nuisance, trespass) require proof that the defendant knew of the resulting harm or was “substantially certain” that harm would result from the defendant’s actions.122 When plaintiffs claim damages from climate change, difficulties in proving causation and other issues and in collecting a substantial portion of damages mean that the “financial viability of these cases from a plaintiff’s perspective in many instances is highly questionable.”123 Problems of proof faced by climate change plaintiffs are often due to “gaps or uncertainties in relevant climate science,” in part because scientific studies have focused on large-scale effects, rather than more local impacts.124 Advances in scientific research may make proof of causation easier, allowing plaintiffs to identify defendants and to apportion their responsibility more accurately.125 An article published in 2014, for example, noted that climate change is the result of historic emissions and traced emissions to major carbon producers. The study, based on records from 1854 to 2010, found that 63% of cumulative global emissions of industrial CO2 and methane originated from ninety international “carbon major” entities (companies, state-owned enterprises, and nations).126 For some cases, studies like this could make apportionment of damages easier. III. The Individual as Plaintiff in Climate Change Litigation In the United States, individuals have the right to comment on regulatory proposals and participate in administrative agency proceedings. Moreover, many statutes have citizen-suit provisions that allow individuals and others affected by statutory or regulatory violations to sue for violations, sometimes after giving notice to the agency. Plaintiffs must generally meet the threshold requirements discussed above. Few individuals, however, have the resources for costly, protracted litigation against governments or private actors.127 Instead, plaintiffs in climate change litigation tend to be environmental organizations and associations. The following discussion therefore includes some cases brought by environmental organizations. A. Human Rights and Public Trust Although climate change threatens people globally and in the United States, few climate change cases in the United States have focused on human rights. In 2005, the Inuit community in Alaska petitioned the Inter-American Commission on Human Rights, claiming that U.S. failure to control GHGs had violated Inuit human rights. The Commission did not decide the case, but the Inuit petition helped to highlight “the human rights implications of climate change.”128 In recent years, public trust litigation, often in state courts, has raised human rights claims, with mixed success.129 These cases, many brought by young people under the auspices of Our Children’s Trust, allege that public trust requires government action on climate change. Using petitions for rulemaking, often seeking carbon recovery plans, as well as lawsuits, they form “a full-scale, coordinated campaign with multiple suits pending and others teed up in different forums, all connected by a common template of science and law.”130 Most petitions and lawsuits have been unsuccessful, but a few have led to regulatory action.131 Successful atmospheric trust litigation requires the court to recognize its judicial role in enforcing public trust obligations, identifying government obligations to protect the atmosphere as a public trust asset, and crafting remedies that will “ensure that the political branches fulfill their trust obligation.”132 A federal case filed in Oregon illustrates the efforts of individual plaintiffs to gain acceptance of the public trust doctrine in the context of climate change. Plaintiffs in Juliana v. United States133 are twenty-one young people, one adult (guardian for future generations), and Earth Guardians, a youth association with a chapter in Oregon. They sued the United States, the President, and executive agencies, alleging that defendants knew for decades that burning fossil fuels destabilized the climate system, but nonetheless enabled exploitation and use of fossil fuels, allowing CO2 concentrations in the atmosphere to escalate. Because the U.S. Constitution does not explicitly protect the environment, plaintiffs in Juliana alleged that defendants’ actions “violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.”134 They sought a declaration that their rights had been violated and an order enjoining continued violation and requiring preparation of a plan to reduce emissions of CO2. Defendants and intervenors moved to dismiss, asserting, among other claims, that the case raised political questions, plaintiffs lacked standing, the federal government is not subject to public trust claims. The judge’s thoughtful opinion affirmed and supplemented the magistrate judge’s denial of the motion to dismiss. The judge identified the questions at issue: “[W]hether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”135 On the political question issue, the court analyzed the case in light of the Supreme Court criteria136 and concluded that the case did not raise a nonjusticiable political question, but instead involved a determination of “whether defendants have violated plaintiffs’ constitutional rights.”137 Moreover, plaintiffs met constitutional requirements for standing. They alleged particularized and imminent injuries, which are ongoing and likely to recur.138 Plaintiffs’ injuries are fairly traceable to defendant’s actions and are redressable because the relief requested (a remedial plan to phase out emissions and reduce CO2) will help to slow climate change.139 The court then evaluated plaintiffs’ due process and public trust claims. Applying a strict scrutiny standard, because of possible infringement of a fundamental right, the court noted that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”140 The court held that “where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.”141 The court evaluated the plaintiffs’ claim of harm to public trust assets and held that the doctrine applies to the federal government. Unlike common law nuisance claims, AEP v. Connecticut did not displace public trust, and those claims, characterized as substantive due process claims, can be heard in federal court.142 Perhaps recognizing the novelty of her decision, the judge commented that “[f]ederal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”143 Defendants moved for an interlocutory appeal, but in June 2017, the district court denied defendants’ motion.144 The United States filed a writ of mandamus in the Ninth Circuit, arguing in part, that [t]he District Court’s rulings in this case show a clear and continuing intent to usurp the power of Congress to determine national policy regarding energy development, use of public lands and environmental protection by constructing out of whole cloth a novel constitutional right to a “climate system capable of sustaining human life.”145 The Ninth Circuit stayed the district court proceedings until further order and heard oral arguments on December 11, 2017.146 Juliana is the first federal court decision holding that “there might be a constitutional right to a sound environment,” but it seems unlikely, according to a climate law scholar, that the plaintiffs will ultimately prevail.147 Indeed, the D.C. Circuit affirmed the dismissal of a suit against federal defendants because public trust was a matter of state law.148 Similarly, cases in state courts may be unsuccessful. For example, a New Mexico state court rejected application of the public trust with a separation of powers rationale.149 An individual plaintiff and a conservation organization alleged that the public trust obligated the government to regulate GHG emissions. The New Mexico Court of Appeals held that the state constitution includes a public trust duty to protect natural resources, including the atmosphere, but that public trust arguments “must be raised within the existing constitutional and statutory framework,” rather than by a common law action.150 The Air Quality Control Act addresses regulation of GHGs and allows plaintiffs the right to participate in the administrative process, so courts cannot independently regulate GHG emissions. Therefore, the court affirmed the trial court’s summary judgment for the state. B. Mitigation Cases v. Public Actors Many federal and state cases seek mitigation of climate change. Some (for example, Massachusetts) demand regulatory action; others demand consideration of GHG emissions and climate change in governmental decision making.151 Industry cases against public actors often challenge regulatory measures to mitigate climate change.152 Two state-court cases brought by youth plaintiffs as part of atmospheric trust litigation illustrate individual-plaintiff lawsuits against public actors for mitigation. In both, plaintiffs sought review of environmental agency denials of petitions for rulemaking. In one, the court required GHG regulations; in the other, the trial court required regulations and recognized plaintiff’s public trust and constitutional rights, but its order was reversed on appeal. In Kain v. Department of Environmental Protection, individual state residents and two associations sought a declaratory judgment or writ of mandamus to require the Department to regulate GHG emissions as required by Massachusetts law.153 After petitioning the Department, which cited regulatory initiatives and asserted that it had complied with the law, state residents sued. The trial court dismissed plaintiff’s claims, and the Supreme Judicial Court of Massachusetts granted review and concluded that the Department had not complied with statutory requirements. Therefore, the court required the Department to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated resources or categories of sources, set emission limits for each year, and set limits that decline on an annual basis.154 Foster v. Washington Department of Ecology155 was a public-trust challenge to the Washington Department of Ecology’s denial of a 2014 petition for a rule to propose science-based GHG emission limits to the legislature. In June 2015, the court ordered the Department of Ecology (DOE) to reconsider its denial of plaintiffs’ petition, especially in light of the DOE’s own report, which the court characterized as an “urgent call to action” on climate change, that emphasized the importance of prompt action on climate change, but failed to recommend stricter emission limits.156 In November 2015, the court affirmed the DOE’s second denial of the plaintiffs’ petition because rulemaking had begun, but emphasized the state and DOE duty to protect public trust and other rights under the Washington state constitution.157 In May 2016, however, after the DOE’s rulemaking lagged, the judge ordered the DOE to finalize its rule and make recommendations for GHG emission reductions to the legislature.158 The Department of Ecology appealed this order.159 By the end of 2016, the DOE had issued its GHG rule and recommended GHG emission limitations to the legislature. Nonetheless, in a December 2016 opinion, the trial court judge, sua sponte, granted petitioners leave to amend their complaint to add a complaint for declaratory judgment that that DOE is violating their inalienable constitutional and public-trust rights to a healthy environment. The court retained jurisdiction of the case to give the plaintiffs their day in court.160 In another order, the court took “judicial notice of the fact that federal mechanisms designed to protect the environment are now under siege, more than ever leaving to the States the obligation to protect their citizens under the Public Trust Doctrine.”161 In September 2017, the Washington Court of Appeals reversed the trial court’s May 2016 order as an abuse of discretion.162 The trial court’s approach in Foster is significant because of its recognition of the crisis of climate change, its declaration of public-trust protection of the atmosphere, and its emphasis on the importance of science for rulemaking.163 In Foster, the judge “declared an atmospheric public trust responsibility of constitutional magnitude in a context framed by urgency, severe danger to humanity, and agency recalcitrance.”164 C. Climate Change in Environmental Impact Assessment 1. Federal Law A significant number of U.S. cases (more than 300) focus on government responsibility to consider the impact of GHG emissions and climate change in decision making. Federal cases rely on the NEPA, the ESA,165 and other statutes; state cases rely on state impact assessment laws. In an analysis of litigation through 2010, researchers found “a fairly well defined case law under NEPA . . . establishing that GHG emissions and climate change impacts are fair game for impact assessment procedures, but that the normal rules apply for determining the level of analysis agencies must provide.”166 Most NEPA claims had been unsuccessful, but some more recent cases have found treatment of climate change in environmental impact statements (EIS) inadequate.167 The Council on Environmental Quality provided guidance for federal agency consideration of GHG emissions and climate change effects under the NEPA.168 A 2017 executive order required that guidance to be withdrawn, but the withdrawal in April 2017 did not change any “legally binding requirement,”169 so the NEPA will continue to require consideration of climate change in environmental assessments and EIS. Plaintiffs—often environmental advocacy groups acting on behalf of their members—in many of these NEPA cases have sued to force analysis of climate change by federal agencies or to challenge the sufficiency of analysis in an EIS. A few decisions have required consideration of climate change in impact assessment.170 Many others have evaluated agencies’ climate change analysis under a deferential standard of review and found the agency’s analysis adequate.171 For example, a recent NEPA case brought by environmental advocacy organizations on behalf of their individual members is WildEarth Guardians v. U.S. Forest Service.172 Petitioners in consolidated cases challenged Forest Service approvals of coal leases, alleging violations of the NEPA and other statutes. Petitioners claimed that the coal leases on federal land in Wyoming had major impacts on CO2 emissions, affected global climate change, and threatened members’ enjoyment of the leased land areas. Members’ documentation of the effects of leases on their use and enjoyment of the areas satisfied standing requirements.173 Nonetheless, the court affirmed the agency decisions. In the EIS prepared for the coal leases, the Forest Service and Bureau of Land Management “did not ignore the effects of coal combustion, GHGs and climate change” and considered risk of harm.174 Applying a deferential standard of review, the court held that the NEPA analysis was not arbitrary and capricious. This decision, however, has been criticized as portraying “an interpretation of NEPA shorn of its capacity to compel agencies to consider how their decisions impact the energy infrastructure that is at the heart of climate change.”175 Some plaintiffs seeking mitigation of climate change fail to satisfy threshold requirements. In Amigos Bravos v. U.S. BLM,176 for example, citizen environmental groups alleged, among other claims, that BLM approval of gas leases on almost 69,000 acres in New Mexico violated several federal statutes by failing to address climate change, global warming, and GHG emissions. Although environmental groups have standing to sue if their members would have standing, these plaintiffs failed to demonstrate that their members suffered injury in fact because they presented no factual support or scientific evidence for their allegations that climate change would impact members’ lives significantly or that climate change would cause imminent harm to the environment in New Mexico, nor did they show that their members used the land subject to BLM leases. Further, plaintiffs failed to demonstrate that the BLM’s approval of the leases made a “meaningful contribution” to climate change; therefore the court also concluded that plaintiffs failed to show that their alleged harms were “fairly traceable” to the BLM’s actions. The federal district court therefore dismissed the suit for lack of standing.177 2. State Impact Assessment Of the many state law impact assessment cases (142, in the Sabin Center Database, with a number filed recently), few have named individual plaintiffs. More typical are cases with associations as plaintiffs. State claims, especially under the California Environmental Quality Act,178 have been more successful than cases under the NEPA.179 In Center for Biological Diversity v. City of Desert Hot Springs,180 for example, a California trial court held that the environmental impact report (EIR) required under California law was inadequate, in part because it failed to determine the effects of a large development project on GHGs or global warming. Some individual plaintiffs challenged consideration of climate change in assessments of local projects, with mixed success. For example, individual plaintiffs challenged their county’s failure to prepare an EIR (instead of a less detailed statement) for a subdivision intended for agro-industrial development.181 Among plaintiffs’ allegations was the failure to consider the environmental effects of odors and other emissions from livestock facilities, effects on air quality, and increased GHG emissions. After the trial court denied plaintiff’s claims, the appellate court held that county approval of the subdivision was a project under the CEQA and required preparation of an EIR because of impact on traffic at an intersection adjacent to the site, but not because the county’s climate change analysis was deficient. In another case, an individual and two associations challenged the EIR on San Francisco’s 2005 Bicycle Plan, prepared under the California Environmental Quality Act.182 The trial court ruled that the EIR complied with the Act, but the individual plaintiff appealed the order, alleging that the 2000-page EIR was deficient. The appellate court rejected arguments (among others) that the EIR, which considered GHG emissions, did not adequately consider climate change and other environmental effects of the Bicycle Plan. The court did, however, require revision of the EIR, which failed to comply with a technical requirement of the Act by omitting specific findings of infeasibility, when the City did not adopt measures that might mitigate significant effects on the environment. D. Adaptation Cases v. Public Actors Climate change policy and litigation in the United States emphasized mitigation, with less focus on adaptation. More recently, however, adaptation has received more attention, both in policy and litigation. State and local law have been particularly important, especially in the context of climate effects on coastal and other communities.183 A few cases demand injunctions to require adaptation measures; others seek compensation for property damage.184 1. Federal Law Cases filed after Hurricane Katrina, though not strictly adaptation cases, sought damages for failure of the Army Corps of Engineers (ACE) to adapt to the effects of climate change. The Army Corps’ action in widening the Mississippi River Gulf Outlet shipping channel and moving it closer to levees increased storm surge. That is, the government canal increased the risk of flooding, and the Corps did not act to avoid flooding.185 Plaintiff’s choice of cause of action, however, was critical. Claims alleging negligence were unsuccessful, but some claims alleging temporary takings resulted in Court of Claims decisions for plaintiffs. In re Katrina Canal Breaches Consolidated Litigation addressed tort claims from plaintiffs (some of the more than 400 individuals) who alleged that the Army Corps’ negligent design and failure to maintain the Mississippi River Gulf Outlet contributed to damage from Hurricane Katrina. The district court concluded that the ACE’s failure to maintain and operate the Gulf Outlet properly led to severe flooding.186 The court held, in part, that the discretionary function exception to the federal Tort Claims Act did not apply.187 The Fifth Circuit affirmed most of the district court’s legal conclusions,188 but then granted the government’s petition for rehearing and withdrew its opinion. On rehearing, the same panel held the government was immune from liability under the discretionary function exception to the Tort Claims Act.189 Its decision for the government affected the bellwether plaintiffs whose cases had been litigated, as well as other claimants who alleged negligence. In other litigation after Hurricane Katrina, the St. Bernard Parish government and individual property owners filed a Fifth Amendment Takings Clause claim against the United States.190 Plaintiffs claimed that the Army Corps’ operation of the Mississippi River Gulf Outlet had increased storm surge and flooding after Hurricane Katrina and subsequent hurricanes, resulting in temporary taking of their property. The 2015 Court of Claims liability decision relied on factual determinations in Katrina Canal Breaches, which found that the Army Corps’ negligence in maintaining and operating the Gulf Outlet was a substantial cause of the flooding.191 The court in St. Bernard Parish held that plaintiffs had protected property interests with reasonable investment-backed expectations, and that the severe and foreseeable flooding constituted a temporary taking.192 In 2016, after failure of the parties to settle or mediate, the Court of Claims calculated just compensation for the plaintiffs’ damages.193 Because property was not lost or destroyed, plaintiffs received no compensation for the value of their fee-simple interest. Instead, they received compensation for the value of replacement improvements on the property and for loss of rent as a result of flooding. The judge entered a final partial judgment with just compensation for eleven “trial properties,” certified a class of property owners, and appointed class counsel. The U.S. Court of Appeals for the Federal Circuit will review the Court of Claims’ decisions.194 As these federal court decisions suggest, “[c]urrent tort doctrine shields the government in most cases from negligence suits related to climate change adaptation,” but government defendants may be more vulnerable to takings claims, which do not require unreasonable government action.195 Takings claims could address the failure to take adaptive measures, taking ineffective measures, or actions that increase property losses. But these actions do not fit “the traditional paradigm of the Takings Clause, wherein the government is held liable for directly causing a loss of property that otherwise would not have happened”; for Takings Clause liability, government actions should be “both the but-for and the proximate cause of property loss.”196 In some instances, however, government failure to prevent property losses—that is, “passive takings”—could lead to liability, and the St Bernard Parish case might support that approach.197 2. State Law Individual and other plaintiffs can bring adaptation cases against states and local governmental units; negligence, takings, and fraud are possible causes of action. Some experts argue that tort law is appropriate for “adaptation liability,” particularly if plaintiffs can prove that defendants’ actions were unreasonable “in light of the well-established science of climate change” and the expectation that governments will provide adaptive infrastructure.198 Sovereign immunity poses obstacles for state law cases, particularly for fraud and some negligence claims, but is less likely to bar takings claims.199 Although government tort claims acts waive sovereign immunity in some situations (dangerous conditions or failure to maintain public property), sovereign immunity may protect state and local governments from tort liability for actions involving discretionary functions, nonstructural measures, failure to adopt regulations, or failure to provide benefits that states have no duty to provide.200 Despite some immunity for state and local governments, “when governments act as landowners they are subject to liability for impacts from their construction and operation of structural measures.”201 Few adaptation cases involve individual plaintiffs. In a recent New York case, plaintiff homeowners sustained water damage to their property after severe storms in 2011 overwhelmed the sewer system. They sued the City of New York and its Department of Environmental Protection in negligence for failure to maintain sewer lines to prevent flooding. The City claimed that it had no knowledge of maintenance issues or defective conditions. Under New York law, a municipality is immune from negligence for discretionary activities (designing a sewer or drainage system). For ministerial actions (negligent maintenance), liability exists only if the municipality violates a special duty to the plaintiff, beyond the duty to the public. The city owed no special duty to plaintiffs, nor did plaintiffs prove negligence; the “sole proximate cause” of flooding was precipitation. Therefore, the court granted summary judgment to the city and dismissed the case.202 Similarly, in Illinois, plaintiffs sued to recover for flooding of their homes after heavy rainfall. In consolidated cases, the court dismissed claims against Cook County and other government defendants under the public duty rule, which applies to provision of government services owed to the public at large, rather than to individual plaintiffs.203 Individuals are defendants, rather than plaintiffs, in eminent domain, which allows governments to acquire property for projects to adapt to the effects of climate change. In a New Jersey case, the local government took permanent easements over beachfront property to construct a 20-foot dune. The easement covered a quarter of the owners’ property; the dune obstructed their beach view, but offered significant protection to the owners and others in the community. In a dispute over just compensation, a jury awarded the owners $375,000, and an appellate court affirmed. The New Jersey Supreme Court, reversing, held that just compensation for a partial taking must be based on a consideration of all relevant, reasonably calculable, and non-conjectural factors that either decrease or increase the value of the remaining property. In a partial-takings case, homeowners are entitled to the fair market value of their loss, not to a windfall, not to a pay out that disregards the home’s enhanced value resulting from a public project.204 Ultimately, the owners settled for $1. Fair-market-value analysis may decrease the cost of adaptation measures, if just compensation for eminent domain considers benefits, as well as losses, from the project to property owners.205 E. Climate Change Cases v. Private Actors Relatively few individual climate change plaintiffs have sued private actors. Owners of private facilities are not protected by sovereign immunity, but the Clean Air Act displaces some federal common law claims.206 State tort law claims may remain viable, and some argue that tort claims are particularly appropriate, in part because “the primary goals of tort law [are] . . . its ability to resolve disputes between individuals while galvanizing changed behavior amongst communities.”207 Nonetheless, tort cases against private actors have not been particularly successful.208 Impediments to recovery for property damage include proving a breach of duty by past emitters and a causal connection between emissions and harms, as well as the complexity of tort cases.209 Claims against property developers, or perhaps engineers and architects, who should recognize climate change vulnerability of land that they sell or develop, may be less difficult, but others issues—for example, foreseeability of harm from climate change—may pose obstacles to recovery.210 Comer v. Murphy Oil USA was a putative class action lawsuit against a number of energy corporations brought by a dozen individuals who owned coastal property destroyed by Hurricane Katrina. Plaintiffs sued for damages under Mississippi common law claims of public and private nuisance, trespass, and negligence, as well as other claims.211 The Fifth Circuit held that the landowners had standing for the tort actions, but not the other claims, and that the tort claims were not barred as a nonjusticiable political question. The opinion was vacated when the court granted rehearing en banc,212 but judicial recusals led to a lack of quorum for the rehearing, and the court did not reinstate the vacated opinion.213 More recently, a pending citizen suit brought by Conservation Law Foundation on behalf of its individual members seeks declarative and injunctive relief and civil penalties. Plaintiffs allege that ExxonMobil’s storage terminal (with toxic and hazardous chemicals) poses a risk to public health and the environment, in part because ExxonMobil failed to adapt to effects of climate change, so a storm surge, sea level rise, or extreme rain could flood the facility.214 In September 2017, the federal district court denied defendant’s motion to dismiss claims for short-term damages, but held that plaintiffs lacked standing for claims for damages not likely to occur until 2050 or 2100. Private actors may also be defendants in suits by governmental units. In July 2017, three local governments in California sued thirty-seven private oil, gas, and coal companies alleged to be responsible for 20% of pollution from CO2 and methane from 1965 to 2015.215 Causes of action in the complaints include public nuisance, private nuisance, negligence, trespass, and strict liability for failure to warn and design defect. Quoting industry documents showing that since the 1960s defendants knew, but concealed their knowledge, that GHG pollution from fossil fuels affected climate and sea levels, plaintiffs alleged that defendants’ conduct led to continued sea-level rise that injured plaintiffs and their citizens. Plaintiffs’ claims for relief include compensatory and punitive damages, abatement of nuisances, disgorgement of profits, and other costs.216 Individual plaintiffs have claimed climate change fraud, alleging that energy companies have misled investors and the public about the risks of climate change from their activities. A recent case filed in Texas on behalf of investors alleged that ExxonMobil had committed securities fraud by failure to disclose climate-related risks.217 Fraud may become more significant in climate change cases. The Securities and Exchange Commission (SEC) advised companies “to consider climate change and its consequences,” including physical impacts and extreme weather conditions, in disclosure documents.218 Moreover, the SEC and others are investigating misleading statements from energy companies,219 and an environmental organization petitioned for ExxonMobil’s suspension as a government contractor because of its deceptive behavior and “campaign of misinformation” on climate change.220 Recent research concluded that energy companies knew of the risks of climate change, had the opportunity to reduce those risks, but instead acted to misinform the public.221 Conclusion As the discussion above indicates, climate change litigation raises complex issues, especially for private plaintiffs. Regulatory challenges as well some common law and constitutional claims are possible causes of action, but few plaintiffs have been successful. Moreover, threshold issues, including standing, the political question doctrine, and displacement, sometimes pose obstacles. Proof of causation also raises special difficulties for individual and other plaintiffs. Although U.S. “courts to date have been unwilling to impose civil liability on private entities,” science may help “address some of the causation and apportionment hurdles that have made these cases challenging.”222 Even so, individual plaintiffs may conclude that lawsuits to mitigate or adapt to climate change are not financially viable. Environmental and other nongovernmental organizations, rather than individual plaintiffs, are more likely to have the resources to pursue climate change litigation. This Report is based on work supported by the USDA, National Institute of Food and Agriculture, Hatch Project No. ILLU-470-348. Footnotes 1 U.S. Global Change Research Program, Highlights of Climate Change Impacts in the United States: The Third National Climate Assessment 2 (Jerry M. Melillo et al. eds., 2014), https://www.globalchange.gov/sites/globalchange/files/NCA3_Highlights_LowRes-small-FINAL_posting.pdf. 2 Id. (“Many lines of independent evidence demonstrate that the rapid warming of the past half-century is due primarily to human activities.”). 3 1 U.S. Global Change Research Program (USGCRP), Climate Science Special Report: Fourth National Climate Assessment 12 (D.J. Wuebbles et al. eds., 2017), https://science2017.globalchange.gov/downloads/CSSR2017_FullReport.pdf. 4 NASA Press Release No. 17-006, NASA, NOAA Data Show 2016 Warmest Year on Record Globally (Jan. 18, 2017), https://www.nasa.gov/press-release/nasa-noaa-data-show-2016-warmest-year-on-record-globally. 5 Am. Meteorological Soc’y, State of the Climate in 2016, 98 Bull. Am. Meteorological Soc’y Si, S175, S178 (Supp. 2017). See U.S. Gov’t Accountability Office, GAO-17–720, Climate Change: Information on Potential Economic Effects Could Help Guide Federal Efforts to Reduce Fiscal Exposure (2017) (recommending government use of information on economic effects to identify risks and responses to climate change). 6 Significant GHGs include water vapor (H2O), carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), ozone (O3), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulphur hexafluoride (SF6), as well as other substances. Although some GHGs occur naturally, human activities produce or sequester additional quantities of these gases and affect atmospheric concentrations. U.S. Envtl. Prot. Agency, EPA 430-P-17-001, Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990–2015, at 1-3 to 1-8 (2017), https://www.epa.gov/sites/production/files/2017-02/documents/2017_complete_report.pdf. 7 Id. at 1-3. 8 Giovanni Forzieri et al., Increasing Risk over Time of Weather-Related Hazards to the European Population: A Data-Driven Prognostic Study, 1 Lancet Planetary Health e200, e200 (2017). 9 Camilo Mora et al., Global Risk of Deadly Heat, 7 Nature Climate Change 501 (2017) (studying “documented lethal heat events”). 10 Forzieri et al., supra note 8, at e200; Susanna Ala-Kurikka, EU Scientists Warn of Huge Rise in Climate-Related Deaths, ENDSEurope, Aug. 7, 2017. Moreover, research projects a range of temperature increases by 2100 from 2 to 4.9oC, with extremely little chance of meeting Paris Agreement goals. Adrian E. Raftery et al., Less than 2oC Warming by 2100 Unlikely, 7 Nature Climate Change (2017), https://www.nature.com/articles/nclimate3352.pdf. 11 Danielle E. Medek, Joel Schwartz & Samuel S. Myers, Estimated Effects of Future Atmospheric CO2 Concentrations on Protein Intake and the Risk of Protein Deficiency by Country and Region, 125 Envtl. Health Perspectives 087002-1 (2017), doi:10.1289/EHP41. 12 For U.S. laws, see Michal Nachmany et al., The GLOBE Climate Legislation Study 606–17 (4th ed. 2014), http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2014/03/Globe2014.pdf; Climate Change Laws of the World, Grantham Inst., http://www.lse.ac.uk/GranthamInstitute/climate-change-laws-of-the-world/ (last visited Apr. 11, 2018). 13 Exec. Office of the President, The President’s Climate Action Plan (2013), https://obamawhitehouse.archives.gov/sites/default/files/image/president27sclimateactionplan.pdf (focusing on reduced carbon emissions, preparation for effects of climate change, and leadership of international efforts). 14 See Michael Mehling, A New Direction for US Climate Policy, 11 Carbon & Climate L. Rev. 3 (2017); Avi Zevin, United States, 11 Carbon & Climate L. Rev. 162 (2017). 15 Exec. Order No. 13,783, Promoting Energy Independence and Economic Growth, 82 Fed. Reg. 16,093 (Mar. 31, 2017). 16 Projected Effect of Trump Administration Policy Changes on US Emissions, Climate Action Tracker, http://climateactiontracker.org/countries/usa.html (last updated Nov. 6, 2017). Regulatory changes to weaken climate policies will require notice and comment rulemaking. 17 U.N. Framework Convention on Climate Change Draft Dec. 1/CP.17, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) (entered into force Nov. 4, 2016); U.N. Framework Convention on Climate Change Dec. 1/CP.21, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016). The Paris Agreement includes nationally determined contributions, that is, voluntary pledges to mitigate GHG emissions. It does not establish enforceable GHG limits or causes of action. 18 Letter from Nikki Haley, U.S. Ambassador, to António Guterres, U.N. Secretary General (Aug. 4, 2017), https://treaties.un.org/doc/Publication/CN/2017/CN.464.2017-Eng.pdf. The United States is eligible to withdraw on November 4, 2019, three years after the Agreement entered into force. The United States will continue to provide GHG emissions data to the U.N., as required by the U.N. Framework Convention on Climate Change, U.N. Doc. A/AC.237/18 (Part II)/Add.1 (May 15, 1992). 19 Projected Effect of Trump Administration Policy Changes on US Emissions, supra note 16 (rating U.S. climate change efforts as critically insufficient). U.S. ratification in September 2016 promised a reduction of net GHG emissions by 2025 to 26–28% below 2005 levels, a commitment “at the least ambitious end of what would be a fair contribution.” Id. 20 U.S. May Meet Emission Goals—Top U.N. Official, EENews Greenwire (July 3, 2017), https://www.eenews.net/greenwire/2017/07/03/stories/1060056898. 21 See Leah A. Dundon, Climate Science for Lawyers, 31 Nat. Res. & Env’t 20, 23 (Spring 2017). 22 David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?, 64 Fla. L. Rev. 15, 21 (2012). 23 Mary Christina Wood & Charles W. Woodward IV, Atmospheric Trust Litigation and the Constitutional Right to a Healthy Climate System: Judicial Recognition at Last, 6 Wash. J. Envtl. L. & Pol’y 634, 643 (2016). 24 Jim Rubin & Derek Furstenwerth, Trump Seeks to Uproot the Obama Climate Change Agenda, but Can He Succeed?, 48 Trends, no. 6, July/Aug. 2017, at 2, 4. 25 Markell & Ruhl, supra note 22, at 27. 26 Id. at 15. 27 Id. at 25. 28 Id. 29 U.S. Climate Change Litigation, Sabin Ctr. for Climate Change Law, http://climatecasechart.com/us-climate-change-litigation/ (updated monthly; numbers from Apr. 11, 2018) [hereinafter Sabin Center Database]. This general summary of climate change cases is guided by the Sabin Center Database. 30 Id. Cases are listed by category, with some reported in more than one category. 31 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370f. 32 549 U.S. 497 (2007), discussed infra Part II.A. 33 See generally Emily Hammond & David L. Markell, Civil Remedies, inGlobal Climate Change and U.S. Law 239 (Michael B. Gerrard & Jody Freeman eds., 2014) (summarizing possible causes of action and obstacles to success). 34 See David Weisbach, Negligence, Strict Liability, and Responsibility for Climate Change, 97 Iowa L. Rev. 521, 521–27 (2012). Weisbach considered strict liability in the context of past GHG emissions; complex issues include determining sources of emissions in the face of inconsistent data and assigning responsibility for harmful effects. 35 See Hammond & Markell, supra note 33 (focusing on nuisance and public trust). 36 Restatement (Second) of Torts § 821B (Am. Law Inst. 1979). A private nuisance is “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Id. § 821D. 37 564 U.S. 410 (2011). 38 Id. at 424. 39 See Maxine Burkett, Litigating Climate Change Adaptation: Theory, Practice, and Corrective (Climate) Justice, 42 Envtl. L. Rep. 11,144, 11,144 (2012) (noting courts’ “skepticism and fatigue with complex climate litigation”). 40 Id. at 11,149. 41 Id. at 11,150. See, e.g., Wohl v. City of New York, 45 Misc. 3d 1217(A), 2014 WL 6092059 (N.Y. Sup. Ct. Oct. 22, 2014) (finding proximate cause was extreme precipitation, not the city’s negligence in maintaining sewer lines). 42 Douglas A. Kysar, What Climate Change Can Do About Tort Law, 42 Envtl. L. Rep. News & Analysis 10,739, 10,740 (2012) (suggesting that climate change could trigger an alteration of tort law). 43 Id. at 10,739. 44 David T. Buente Jr., Quin M. Sorenson & Clayton G. Northouse, A Response to What Climate Change Can Do About Tort Law, 42 Envtl. L. Rep. News & Analysis 10,749, 10,751 (2012). 45 Id. But seeAndrew Gage & Margaretha Wewerinke-Singh, Taking Climate Justice into Our Own Hands: A Model Climate Compensation Act (2015), https://ssrn.com/abstract=2906252 (proposing a Model Climate Compensation Act, based on common law principles and intended to facilitate climate change lawsuits in state courts). 46 These cases are collected at Sabin Center Database, supra note 29. Lawsuits or petitions for rulemaking have been filed in all fifty states. 47 SeeOur Children’s Trust, https://www.ourchildrenstrust.org/ (last visited Feb. 19, 2018). Our Children’s Trust and related organizations have filed lawsuits and petitions for administrative rulemaking. 48 Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 484 (1970). A leading case is Illinois Cent. R.R., Co. v. Illinois, 146 U.S. 387 (1892). 49 Wood & Woodward, supra note 23, at 650–53. 50 E.g., Foster v. Wash. Dep’t of Ecology, No. 14-2-25295-1 SEA (Wash. Super. Ct. June 23, 2015), discussed in Wood & Woodward, supra note 23. 51 Robin Kundis Craig, Climate Change, State Public Trust Doctrines, and PPL Montana 8–10 (Univ. of Utah Coll. of Law, Research Paper No. 57, 2014), https://ssrn.com/abstract=2380754. 52 Id. at 9. 53 E.g., Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C. L. Rev. 201, 240–57 (2010) (focusing on tort lawsuits). 54 Id. at 255. 55 Michael Gerrard, Court Rulings Accept Climate Science, 250 N.Y.L.J., Sept. 12, 2013. 56 Maria L. Banda & Scott Fulton, Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law, 47 Envtl. L. Rep. News & Analysis 10,121, 10,130 (2017). 57 Massachusetts v. EPA, 549 U.S. 497, 504–05 (2007). 58 For a lengthy list of tactical questions and issues in climate change litigation, even when standing, political question, and displacement do not bar a lawsuit, see Michael B. Gerrard, What Litigation of a Climate Nuisance Suit Might Look Like, 121 Yale L.J. Online 135 (2011). 59 U.S. Const. art. III, § 2. 60 Massachusetts, 549 U.S. at 517. 61 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). 62 Id. at 181. 63 Massachusetts, 549 U.S. at 518. 64 Lujan, 504 U.S. at 561. As one scholar noted, these elements are ill-defined, leaving room for judges to decide, for example, what is an injury, whether that injury is “fairly traceable” to the defendant’s behavior, and whether the remedy plaintiff seeks is constitutionally adequate. Daniel A. Farber, Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, 121 Yale L.J. Online 121, 122 (2011) (referring to the “unpredictability and ideological nature of standing”). 65 Friends of the Earth, 528 U.S. at 181. 66 Lujan, 504 U.S. at 560 n.1. 67 See Gifford, supra note 53, at 243, 244 (citing Thomas W. Merrill, Global Warming as a Public Nuisance, 30 Colum. J. Envtl. L. 293 (2005)). 68 Barry Kellman, Standing to Challenge Climate Change Decisions, 46 Envtl. L. Rep. News & Analysis 10,116, 10,117 (2016). 69 Massachusetts, 549 U.S. at 522, cited by Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 352, 389 (2011). 70 Ewing & Kysar, supra note 69, at 392. 71 Connecticut v. Am. Elec. Power, Co., 582 F. 3d 309, 346 (2d Cir. 2009), rev’d on other grounds, 564 U.S. 410 (2011). 72 Ewing & Kysar, supra note 69, at 393. 73 Id. at 394. 74 Massachusetts, 549 U.S. at 525. 75 42 U.S.C. §§ 4321–4370f. 76 Id. §§ 1531–1544. 77 Id. §§ 7401–7671q. 78 Kellman, supra note 68, at 10,118 (identifying and analyzing two types of cases). 79 42 U.S.C. § 4332(C) (requiring an environmental impact statement for “major federal actions significantly affecting the quality of the human environment”). 80 E.g., Ctr. for Biological Diversity v. Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (challenging the agency’s failure to consider climate change in oil and gas leasing decision), cited by Kellman, supra note 68, at 10,118. 81 738 F.3d 298 (D.C. Cir. 2013) (challenging the Bureau of Land Management (BLM)’s failure to consider climate change in a decision to lease federal land for coal mining). 82 Kellman, supra note 68, at 10,118. 83 Id. at 10,118–19 (citing additional decisions). 84 Bruce Myers, John Broderick & Shannon Smyth, Charting an Uncertain Legal Climate: Article III Standing in Lawsuits to Combat Climate Change, 45 Envtl. L. Rep. News & Analysis 10,509, 10,509 (2015) (providing a chart of cases with results of challenges to standing and indicating that a majority of plaintiffs are NGOs). 85 549 U.S. 497 (2007). 86 Id. at 505. 87 Id. at 522–26. 88 Jonathan H. Adler, Warming up to Climate Change Litigation, 93 Va. L. Rev. in Brief 63, 66 (2007). 89 Kellman, supra note 68, at 10,120. 90 Id. at 10,118. See also Myers, Broderick & Smyth, supra note 84, at 10,509. 91 James R. May, AEP v. Connecticut and the Future of the Political Question Doctrine, 121 Yale L.J. Online 127, 127 (2011). For a detailed analysis of the political question doctrine in the context of climate change, see Ewing & Kysar, supra note 69, at 380–86. 92 Kevin A. Gaynor, Benjamin S. Lippard & Margaret E. Peloso, Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims, 40 Envtl. L. Rep. News & Analysis 10,845, 10,847 (2010). 93 The Court described the attributes of a political question: [A] textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. 186, 217 (1962) (challenge to legislative reapportionment in Tennessee). 94 Connecticut v. Am. Elec. Power, Co., 582 F. 3d 309, 321 (2d Cir. 2009). See also Native Village of Kivalina v. ExxonMobil Corp. 663 F. Supp. 2d 863 (N.D. Cal. 2009); 696 F.3d 849 (9th Cir. 2012) (affirming on displacement grounds), cert. denied, 133 S. Ct. 2390 (2013). 95 406 F. Supp. 2d 265, 271 n.6, 272 (S.D.N.Y. 2005). 96 Connecticut, 582 F.3d at 321–32. The court indicated that because Congress can displace common law standards, there is “no need for the protections of the political question doctrine.” Id. at 332. The court held that plaintiffs had standing. See also Comer v. Murphy Oil USA, discussed infra text accompanying notes 211–13. 97 Am. Elec. Power, Co. v. Connecticut, 564 U.S. 410, 424 (2011). See infra Part II.C for a discussion of displacement. 98 Juliana v. United States, 217 F. Supp. 3d 1224, 1235–42 (D. Or. 2016). 99 E.g., Gifford, supra note 53, at 240–57. 100 E.g., May, supra note 91, at 132–33 (quotation at 133). See also Ewing & Kysar, supra note 69, at 387. 101 See generally John Wood, Easier Said than Done: Displacing Public Nuisance When States Sue for Climate Change Damages, 41 Envtl. L. Rep. News & Analysis 10,316 (2011); Hari M. Osofsky, AEP v. Connecticut’s Implications for the Future of Climate Change Litigation, 121 Yale L.J. Online 101 (2011). 102 AEP, 564 U.S. The Court was evenly decided on the issue of standing, so affirmed the Second Circuit’s exercise of jurisdiction. Id. at 420. Plaintiffs sought an injunction requiring defendants to cap and then reduce CO2 emissions. 103 549 U.S. 497 (2007). 104 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Envtl. Prot. Agency Dec. 15, 2009). 105 AEP, 564 U.S. at 424. 106 Id. (citations omitted). 107 Id. at 426. 108 696 F. 3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013). 109 Id. at 857. 110 Id. (citing Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981)). 111 AEP, 564 U.S. at 429 (noting that the parties had not briefed the issues of state common law or preemption). 112 Id. at 423 (quoting Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)). 113 AEP, 564 U.S. at 428. See generally Jonathan H. Adler, A Tale of Two Climate Cases, 121 Yale L.J. Online 109, 112 (2011). 114 Juliana v. United States, 217 F. Supp. 3d 1224, 1260 (2016). See id. at 1255–61 for a more detailed discussion. 115 See supra text accompanying notes 61–72. Massachusetts v. EPA did not require a “rigorous step-by-step proof of causal chains” to grant standing. Jacqueline Peel, Issues in Climate Change Litigation, 5 Carbon & Climate L. Rev. 15, 19 (2011). 116 Michael Burger & Justin Grundlach, U.N. Env’t Programme, The Status of Climate Change Litigation: A Global Review 20 (2017). 117 Ronald G. Peresich, Climate Change Litigation, 45 The Brief 28, 32, (Summer 2016 (analyzing the Comer cases). 118 Burger & Grundlach, supra note 116, at 20. 119 Peresich, supra note 117, at 33; Gaynor, Lippard & Peloso, supra note 92, at 10,853–54. 120 Gaynor, Lippard & Peloso, supra note 92, at 10,854–56. 121 Wohl v. City of New York, 45 Misc. 3d 1217(A), 2014 WL 6092059 (N.Y. Sup. Ct. Oct. 22, 2014). 122 Restatement (Second) of Torts § 825 (Am. Law Inst. 1979). 123 Gaynor, Lippard & Peloso, supra note 92, at 10,857. 124 Peel, supra note 115, at 19. 125 Banda & Fulton, supra note 56, at 10,130. 126 Richard Heede, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229, 229 (2015). Half of all emissions between 1751 and 2010 occurred since 1986. Id. at 234. One purpose of the study was “to lay the possible groundwork for apportioning responsibility for climate change to the entities that provided the hydrocarbon products to the global economy.” Id. at 230. Some courts have used market share to apportion responsibility for harm, for example, from the synthetic estrogen DES (diethylstilbestrol). Ewing & Kysar, supra note 69, at 350. 127 Class action lawsuits do not seem prominent in climate change litigation. A search of the climate change litigation database identified only eight class action cases. Sabin Center Database, supra note 29. 128 Michael Burger & Jessica Wentz, U.N. Env’t Programme, Climate Change and Human Rights 12 (2015). In human rights cases, as in other climate change cases, evidentiary challenges have prevented success: difficulties of proving causal links between emitters, climate change, and plaintiff’s harm, and absence of GHG standards. Id. at 35. 129 But see id. at 23 n.151, suggesting that public trust cases do not raise human rights claims, but that “there is a clear relationship between governments’ public trust obligations—which require the maintenance and preservation of common environmental resources for the benefit of current and future generations—and governments’ human rights obligations.” 130 Wood & Woodward, supra note 23, at 648. 131 Some are discussed in the context of state lawsuits for mitigation. 132 Wood & Woodward, supra note 23, at 656–69 (quotation at 668). Young plaintiffs continue to bring these cases. See, e.g., Sinnok v. Alaska, No. 3AN-17-CI (Alaska Super. Ct. filed Oct. 27, 2017). 133 Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The adult, James Hansen, is a climate scientist whose recent research, published with fourteen co-authors, quantified the burden of climate change on future generations. James Hansen et al., Young People’s Burden: Requirement of Negative CO2Emissions, 8 Earth Sys. Dynamics 577 (2017). 134 Juliana, 217 F. Supp. 3d at 1233. 135 Id. at 1234. 136 Baker v. Carr, 369 U.S. 186 (1962), discussed supra text accompanying note 93. 137 Juliana, 217 F. Supp. 3d at 1241; political question analysis at 1235–42 (noting that a remedy, if plaintiffs prevail, would have to be crafted carefully to avoid separation of powers issues). 138 Id. at 1242–44. Injuries included algae blooms in drinking water, wildfires and floods, high temperatures affecting a family orchard, and a disastrous flood that destroyed a home. 139 Id. at 1246–47 (stating that the causal link is adequate for pleading, but at trial, causation may be difficult to prove). 140 Id. at 1250. 141 Id. 142 Id. at 1255–61. The court distinguishes PPL Montana, L.L.C. v. Montana, 565 U.S. 576, 603 (2012): “public trust doctrine remains a matter of state law”; “the contours of that public trust do not depend upon the Constitution.” Juliana, 217 F. Supp. 3d at 1272–76. 143 Id. at 1262. The court commented: Throughout their objections, defendants and intervenors attempt to subject a lawsuit alleging constitutional injuries to case law governing statutory and common-law environmental claims. They are correct that plaintiffs likely could not obtain the relief they seek through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws. But that argument misses the point. This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.Id. at 1261. 144 Order, Juliana v. United States, No. 6:15-CV-01517, 2017 WL 2483705, at *2 (D. Or. June 8, 2017) (agreeing with the magistrate’s May 2017 decision). The magistrate judge granted trade group intervenors’ motions to withdraw. 145 Petition for Writ of Mandamus, United States v. U.S. Dist. Court for the Dist. of Or., No. 17-71692, 2017 WL 2537433, at *40 (9th Cir. June 9, 2017). 146 Order, Juliana v. United States, No. 17-71692 (9th Cir. July 25, 2017); Amanda Reilly, 9th Circuit Panel Skeptical of Dismissing Kids’ Suit, E&E News PM, Dec. 11, 2017. On March 7, 2018, the Ninth Circuit denied the petition for a writ of mandamus and refused to dismiss the climate change lawsuit. United States v. United States Dist. Court for the Dist. of Or., No. 17-71692 (9th Cir. Mar. 7, 2018). The trial is scheduled for late October 2018. 147 Ciara O’Rourke, The 11-Year-Old Suing Trump Over Climate Change, The Atlantic (Feb. 9, 2017), https://www.theatlantic.com/science/archive/2017/02/trump-climate-lawsuit/516054/ (citing Michael Gerrard, who believes that a decision for plaintiffs would not survive Supreme Court review). See generally Michael C. Blumm & Mary Christina Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. U. L. Rev. 1 (2017). 148 Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012) (dismissing suit against federal defendants because public trust was a matter of state law), aff’d sub nom., Alec L. v. McCarthy, 561 Fed. App’x 7 (Mem.) (D.C. Cir. 2014), cert. denied, 135 S. Ct. 774 (2014). 149 Sanders-Reed v. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015). 150 Id. at 1225. 151 Federal common law tort suits filed before 2011 focused on mitigation. Burkett, supra note 39, at 11,145 (referring to “mitigation-oriented carbon torts”). 152 These industry lawsuits, many challenging CAA regulations, are collected in the Sabin Center Database. E.g., Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) (challenge to regulation of stationary sources under the CAA). 153 Kain v. Dep't of Envtl. Prot., 49 N.E.3d 1124 (Mass. 2016). 154 Id. at 1142. The opinion does not consider public trust. 155 Foster v. Washington Dep’t of Ecology, No. 14-2-25295-1 (Wash. Super. Ct. Sept. 15, 2014). The judge issued orders on June 23, 2015; Nov. 19, 2015 (reported at 2015 WL 7721362); May 16, 2016; Dec. 19, 2016; and April 18, 2017. Orders are collected in Sabin Center Database, supra note 29. For a detailed discussion of Foster, see Wood & Woodward, supra note 23, at 669–72. 156 Order, Foster, No. 14-2-25295-1 (June 23, 2015). 157 Order, Foster, 2015 WL 7721362 (Nov. 19, 2015). 158 Order, Foster, No. 14-2-25295-1 (May 16, 2016), following an April 29, 2016 ruling from the bench (recognizing “extraordinary circumstances”). 159 Foster, No. 14-2-25295-1 (Wash. Ct. App. filed June 15, 2016). 160 Foster, No. 14-2-25295-1 (Dec. 19, 2016) (order denying motion for order of contempt and granting sua sponte leave to file amended pleading). 161 Foster (Apr. 18, 2017) (order granting petitioner’s motion for leave to file supplemental brief), cited in Blumm & Wood, supra note 147, at 66 n.360. 162 Foster, No. 75374-6-1, 2017 WL 3868481 (Wash. Ct. App. Sept. 5, 2017). The trial court had not met the requirements for granting relief under the provision of Washington law on which it relied. 163 On Foster’s significance, see Wood & Woodward, supra note 23, at 673–83. 164 Id. at 673. See also Martinez v. Colo. Oil & Gas Conservation Comm’n, a rulemaking petition by young plaintiffs who relied in part on public trust and constitutional rights. The Court of Appeals relied on a Colorado statute, and so did not reach the public trust issue. No. 16CA0564, 2017 WL 1089556 (Colo. App. Mar. 23, 2017) (not released for publication as of Oct. 18, 2017), petition for cert. granted, No. 17 SC 297 (Colo. Jan. 29, 2018). 165 The ESA requires consideration of climate change, primarily in agency consultations. See David Owen, Endangered Species Act, inGlobal Climate Change and U.S. Law,supra note 33, at 183, 196. See 16 U.S.C. §§ 1536(a)(2), 1536(a)(2), (b)(3); citizen-suit provision, § 1540(g). E.g., Nat. Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007) (consultation about threatened fish and its habitat must consider climate change), cited in Markell & Ruhl, supra note 22, at 63–64. 166 Markell & Ruhl, supra note 22, at 85. The NEPA is procedural and provides public notice of environmental impacts. Unlike many other federal environmental statutes, the NEPA does not have a citizen-suit provision, but litigants can sue under the Administrative Procedure Act, 5 U.S.C. § 702, which allows persons adversely affected to seek review of agency action. 167 Up until 2010, no court had found an agency analysis of climate change in an EIS to be inadequate. Markell & Ruhl, supra note 22, at 61–62. For a recent analysis, see Michael Burger & Jessica Wentz, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, 41 Harv. Envtl. L. Rev. 109 (2017). 168 Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews, announced at 81 Fed. Reg. 51,866 (Aug. 5, 2016). 169 Exec. Order No. 13,783, supra note 15, at 16,094; Council on Environmental Quality, Withdrawal of Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 82 Fed. Reg. 16,576 (Apr. 5, 2017). 170 E.g., Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) (requiring agency to consider cumulative impact GHG implications); Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 521 (8th Cir. 2003) (requiring agency to consider air-quality effects and GHG emissions in rail project that would transport coal). See Paul Weiland, Robert Horton & Erik Beck, Environmental Impact Review, inGlobal Climate Change and U.S. Law,supra note 33, at 153, 160–64 (analyzing case law). 171 Weiland, Horton & Beck, supra note 170, at 161. See, e.g., WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (upholding a BLM decision to lease tracts for coal mining; EIS discussed climate change, but not its global impacts, and followed Council on Environmental Quality (CEQ) guidance, so the court upheld it). But see High Country Conservation Advocates v. U.S. Forest Serv., 52 F. Supp. 3d 1174 (D. Colo. 2014) (EIS rejected for failure to consider impacts of emissions or costs of climate change). For more detail, see Barry Kellman, NEPA Review of Climate Change, 46 Envtl. L. Rep. 10,378, 10,382–83 (2016). 172 120 F. Supp. 3d 1237 (D. Wyo. 2015). Petitioners challenged the actions under the Administrative Procedure Act. The NEPA and the Federal Land Policy and Management Act lack citizen-suit provisions. 173 Id. at 1257. 174 Id. at 1273. 175 Kellman, supra note 171, at 10,384. See also Jessica Wentz, Planning for the Effects of Climate Change on Natural Resources, 47 Envtl. L. Rep. News & Analysis 10,220, 10,223 & n.28 (2017) (stating that courts defer to agency decisions about the scope of climate change review). 176 Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118 (D.N.M. 2011). 177 Id. at 1138–39. 178 CA Pub. Res. §§ 21,000–21,189.3. 179 Markell & Ruhl, supra note 22, at 63 (cases to 2010). 180 No. RIC464585, 2008 WL 3996186 (Cal. Super. Ct. Aug. 6, 2008). 181 Rominger v. County of Colusa, 229 Cal. App. 4th 690 (2014). 182 Anderson v. City & County of San Francisco, No. A129910, 2013 WL 144915 (Cal. Ct. App. Jan. 14, 2013). See also Jones v. Regents of the Univ. of Cal., 183 Cal. App. 4th 818 (2010) (finding no requirement to allow public comment in final EIR amended to consider GHG emissions). 183 Jacqueline Peel & Hari M. Osofsky, Sue to Adapt?, 99 Minn. L. Rev. 2177, 2178–79, 2192 (2015). Little adaptation litigation occurred before 2012, although ESA and tort cases had implications for adaptation. Id. at 2192 (citing Markell & Ruhl, supra note 22, at 30–32). 184 Burger & Grundlach, supra note 116, at 22. 185 David Dana, Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 Envtl. Affairs 281, 290 (2016). 186 In re Katrina Canal Breaches Consol. Litig., 647 F. Supp. 2d 644, 679–98 (E.D. La. 2009). A number of opinions decided claims of various plaintiffs. 187 28 U.S.C. § 2674. The discretionary function exception, 28 U.S.C. § 2680(a), excepts any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 188 In re Katrina Canal Breaches Litig., 673 F.3d 381, 399 (5th Cir. 2012) (withdrawn). 189 In re Katrina Canal Breaches Litig., 696 F. 3d 436, 454 (5th Cir. 2012), cert. denied sub nom., Lattimore v. United States, 133 S. Ct. 2855 (2013). The Fifth Circuit also held that the government was immune from liability under the Flood Control Act of 1928, 33 U.S.C. § 702c. 190 St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (2015), originally filed as Tommaseo v. United States. The U.S. Court of Federal Claims has jurisdiction under the Tucker Act, 29 U.S.C. § 1491, for damage claims against the United States that are not tort claims; the Tucker Act does not create substantive rights. 191 By July 2009, the ACE had closed the Mississippi River Gulf Outlet because of the likelihood of continued flooding. St Bernard Parish, 121 Fed. Cl. at 691. The Fifth Circuit, 696 F.2d 436, 441–43, upheld the District Court’s findings of fact in Katrina Canal Breaches, which assigned causation to the Army Corps of Engineers. 192 121 Fed. Cl. at 746. 193 Id. at 707. Recent Supreme Court decisions indicate that governments can be liable for flooding as a temporary taking. E.g., Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (2012). 194 St. Bernard Parish Gov’t v. United States, No. 16–2301 (Fed Cir. Mar. 24, 2017). 195 Dana, supra note 185, at 287–88, n.29 (quote on 288). 196 Id. at 286. 197 Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345, 389–401 (2014); Dana, supra note 185, at 289–90. 198 Burkett, supra note 39, at 11,145, 11,147. Proof of causation may be difficult. 199 Jennifer Klein, Sabin Ctr. for Climate Change Law, Potential Liability of Governments for Failure to Prepare for Climate Change (2015), http://columbiaclimatelaw.com/files/2016/06/Klein-2015-08-Liability-US-Gov-Failure-to-Prep-Climate-Change.pdf. On fraud, knowing misrepresentation of information about climate change, see id. at 15–23; on takings, see id. at 23–27. U.S. Const. amend. XI bars cases against states, but not local governments, in federal courts. Klein, supra, at 4. 200 Burkett, supra note 39, at 11,153–54. 201 Id. at 11,154. See also Maxine Burkett, Duty and Breach in an Era of Uncertainty: Local Government Liability for Failure to Adapt to Climate Change, 20 Geo. Mason L. Rev. 775 (2013). 202 Wohl v. City of New York, 45 Misc. 3d 1217(A), 2014 WL 6092059 (N.Y. Sup. Ct. Oct. 22, 2014). 203 Tzakis v. Berger Excavating Contractors, Inc., 2009 CH 6159 (Ill. Cir. Ct. 2009). In May 2014, Illinois Farmers Insurance, Co. brought nine class-action lawsuits against municipalities and counties in the Chicago area, after 600 insured homes suffered flood damage in heavy April 2013 storms. The suits alleged that defendants were aware of the effects of climate change, but did not prepare for the heavy rains and floods caused by higher global temperatures. The company withdrew the suits in June 2014. See, e.g., Illinois Farmers Ins., Co. v. Metro. Water Reclamation Dist. of Greater Chi., No. 2014CH06608 (Ill. Cir. Ct. filed Apr. 16, 2014) (dismissed June 4, 2014). 204 Borough of Harvey Cedars v. Karan, 70 A.3d 524, 527 (N.J. 2013). 205 See Peel & Osofsky, supra note 183, at 2203–05, 2247. See also Stephen R. Miller, The Local Official and Climate Change, 46 Envtl. L. Rep. News & Analysis 10,883, 10,883 (2016). “[E]ven the most aggressive efforts to address climate change have largely ignored land use,” usually the responsibility of local officials. Issues for cities include lack of technical capability, lack of political will, ineffective land use planning and regulatory institutions. Id. at 10,884. 206 See, e.g., American Electric Power and Kivalina, discussed supra Part II.C. 207 Burkett, supra note 39, at 11,147. 208 See, e.g., Pietrangelo v. S&E Customize It Auto Corp., No. SCR 100/13, 39 Misc. 3d 1239(A) (N.Y. Civ. Ct. May 22, 2013). Court dismissed suit against auto bailee for damage after Hurricane Sandy; bailee had no obligation to have insurance, and an “act of God” defense barred the negligence claim. 209 Burkett, supra note 39, at 11,150. 210 Id. at 11,155–56. 211 585 F.3d 855, 859–60 (5th Cir. 2009), vacated, 598 F.3d 208 (2010). Other claims were unjust enrichment, fraudulent misrepresentation, and civil conspiracy. 212 598 F.3d 208 (5th Cir. 2010). 213 607 F.3d 1049, 1055 (5th Cir. 2010). 214 Conservation Law Found. v. ExxonMobil Corp., No. 1:16-cv-11950, at 49–51 (¶¶ 183–86) (D. Mass. filed Sept. 29, 2016). 215 County of San Mateo v. Chevron Corp., No. 17CIV03222 (Cal. Super. Ct. July 17, 2017); County of Marin v. Chevron Crop., No. CIV1702586 (Cal. Super. Ct. July 7, 2017); City of Imperial Beach v. Chevron Corp., No. C17-01227 (Cal. Super. Ct. July 17, 2017). In August 2017, defendants removed the cases to federal court, and plaintiffs moved to remand. The U.S. District Court for the Northern District of California granted plaintiffs’ motion to remand. Removal was not warranted, among other reasons, under federal common law or the doctrine of complete preemption. An appeal is pending. Order Denying Remand, County of San Mateo v. Chevron Corp., No. 17-cv-04929-VC (N.D. Cal. Mar. 16, 2018). In re Peabody Energy Corp., No. 16-42529-399 (Bankr. E.D. Mo. Dec. 8, 2017), dismissed the cases against Peabody. 216 Environmental organizations have suggested that liability may follow from energy companies’ “funding climate denial and disseminating false or misleading information on climate risks.” Kevin LaCroix, Is Climate Change a D&O Insurance Issue?, The D&O Diary (June 2, 2014), https://www.dandodiary.com/2014/06/articles/director-and-officer-liability/is-climate-change-a-do-liability-and-insurance-issue/. 217 Ramirez v. ExxonMobil Corp., No. 3:16-cv-03111 (N.D. Tex. filed Nov. 7, 2016). Defendant moved to dismiss in September 2017. 218 SEC, Commission Guidance Regarding Disclosure Related to Climate Change, 75 Fed. Reg. 6290, 6297 (Feb. 8, 2010). See also SEC, Concept Release, Business and Financial Disclosure Required by Regulation S–K, 81 Fed. Reg. 23,916 (Apr. 22, 2016). See Dundon, supra note 21, at 23. On disclosure requirements, see Matthew Morreale, Corporate Disclosure Considerations Related to Climate Change, inGlobal Climate Change and U.S. Law,supra note 33, at 205. 219 Banda & Fulton, supra note 56, at 10,134. 220 Petition for Suspension or Debarment, Waterkeeper All., Inc. (Dec. 14, 2016), http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2016/20161214_docket-na_petition.pdf. 221 Ctr. for Int’l Envtl. Law, Smoke & Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis (2017), http://www.ciel.org/wp-content/uploads/2017/11/Smoke-Fumes-FINAL.pdf. See alsoDavid Anderson, Matt Kasper & David Pomerantz, Energy & Pol’y Inst., Utilities Knew: Documenting Electric Utilities’ Early Knowledge and Ongoing Deception on Climate Change from 1968–2017 (2017), https://www.eenews.net/assets/2017/07/25/document_gw_08.pdf. 222 Banda & Fulton, supra note 56, at 10,134. © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
Journal
American Journal of Comparative Law – Oxford University Press
Published: Jun 11, 2018