EMERGING LEGAL ISSUES: WETLANDS AND CLIMATE CHANGE. Patrick Parenteau Professor of Law Vermont Law School

Transcription

1 EMERGING LEGAL ISSUES: WETLANDS AND CLIMATE CHANGE Patrick Parenteau Professor of Law Vermont Law School

2 Massachusetts v EPA 2007 Climate change is real and EPA has a duty to regulate GHG emissions that are reasonably likely to endanger public health and welfare

3 American Electric Power v Connecticut (2011) Question: Is there a federal common law remedy to limit greenhouse gas emissions? Answer: No Reason: The Clean Air Act has displaced FCL Result: It is up to EPA to regulate GHG

4 Native Village of Kivalina v. Exxon Mobil

5 Facts: * Barrier island is eroding in response to melting icepack caused by global warming * Village must be relocated to mainland at substantial cost (as much as $400 million) * Action seeks monetary damages to cover the costs of relocating the village Claims: * Federal Common Law Nuisance, Negligence, Strict Liability, Conspiracy * Alternatively, State Common Law based on same theories

6 Village of Kivalina v Exxon Mobil (2012) Three judge panel extends ruling in AEP v Connecticut to bar claims for damages under federal common law. Petition for review by Supreme Court pending

7 Hurricane Katrina

8 Comer v Murphy Oil Plaintiffs public and private nuisance claims assert that defendants intentionally and unreasonably used their property so as to produce massive amounts of greenhouse gasses and thereby injure both plaintiffs and the general public by contributing to global warming, which caused the sea level rise and added to the ferocity of Hurricane Katrina, the combined effects of which resulted in the destruction of plaintiffs private property, as well as their loss of use of certain public property in the vicinity of their dwellings.

9 Comer v Murphy Oil History * Mississippi District Court dismisses case on standing and political question grounds * Fifth Circuit panel reverses and remands for trial * Fifth Circuit votes to rehear the case en banc and vacates panel decision * Due to recusals Fifth Circuit lacks a quorum to hear the case and dismisses the appeal * Supreme Court declines to review * Plaintiffs re-file their suit and are again dismissed * Oral argument scheduled before 5 th Circuit in May

10 Suits to Nudge/Force EPA to Regulate GHG s

11 Settlement Agreement on New Source Performance Standards (NSPS) * NSPS applies to new and modified sources of air pollution that significantly endanger public health and welfare. * EPA adopted a carbon standard for coal fired powerplants but has delayed its effective date and may issue a modified rule under CAA 111(b). On April 17 ten states threatened EPA with another suit if the rule isn t finalized. * A second rule applying to oil refineries is also overdue

12 Existing Sources * For pollutants not regulated under other parts of the Clean Air Act, like GHG s, EPA must establish emission guidelines that States use to develop plans for reducing emissions from existing sources. The guidelines include targets based on demonstrated controls, emission reductions, costs and expected timeframes for installation and compliance, and can be less stringent than the requirements imposed on new sources. * EPA has passed the deadline in the settlement agreement to propose these guidelines under 111(d).

13 Suits to Force Agencies to Consider Climate Change in NEPA Documents *Mid States Coalition v Surface Transportation Board 345 F.3d 520 (8th Cir. Oct. 2, 2003 *Border Powerplant Working Group v DOE 260 F. Supp. 2d 997 (S.D. Cal. 2003) *Center for Biological Diversity v NHTSA 508 F.3d 508 (9h Cir. 2010)

14 CEQ Draft Guidance for Greenhouse Gas Emissions and Climate Change Impacts (2010) * Explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change of a proposed action under NEPA. * Provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design. * Does not apply to land and resource management actions and does not propose to regulate greenhouse gases. * President Obama has vowed to issue this as a final directive but no date set

15 Suits to Enforce the Endangered Species Act Against GHG Emissions NRDC v Kempthorne 506 F.Supp.2d 322 (E.D.Cal.2007)(agencies must consider effects of climate change on protected delta smelt in the context of water deliveries from federal reservoirs) In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F.Supp.2d 214 (D.D.C.2011)(upheld DOI decision not to use the ESA to regulate GHG s outside the bear s range).

16 Atmospheric Trust Litigation Alec L. v. Jackson, 863 F.Supp.2d 11 (D.D.C.2012)(case dismissed on ground there is no federal public trust doctrine that applies to the atmosphere)(case is on appeal to DC Circuit). Many other cases and petitions pending, and a couple of procedural victories, but so far no breakthrough decisions.

17 Thanks for Your Attention