Climate change litigation in the USA

Abstract

Although the USA is the world's largest producer of greenhouse gas emissions, the federal government refuses to implement regulations to limit emissions. This lack of action has led to numerous climate change related lawsuits against the US federal government and government-funded agencies.

This paper outlines six of these lawsuits, including litigation filed by non-governmental organizations (NGOs), US Attorney Generals, cities, and institutions. The controversial results of one of the cases was a declaration by the US Environmental Protection Agency (EPA) stating that CO₂ is not an air pollutant and cannot be regulated under the Clean Air Act (CAA). This decision produced volatile responses from many stakeholders, including petitions from State Attorney Generals both opposing and supporting this decision. The 12 opposing State Attorney Generals along with numerous NGOs legally challenged the EPA's decision; court sessions regarding the case began in early April 2005.

Even with the pressure from climate change litigation, there has still been no regulation of greenhouse gas emissions by the US federal government. However, through cases that have yet to be resolved, in particular the above-mentioned lawsuit, there is hope that the White House will finally act to reduce the United States' impact on climate change.

Keywords:

• Climate change
• lawsuits
• litigation
• USA
• greenhouse gas emissions
• CO2

1. Introduction

Although it consists of less than 5% of the world's population, the USA is the world's largest producer of greenhouse gases, accounting for 25% of global emissions. While other, albeit lesser emitting, developed countries (such as many of the new European Member States) work to implement the Kyoto Protocol and reduce greenhouse gas emissions, the US government barely acknowledges the direct connection between an increase in greenhouse gas emissions and the rapid increase in the rate of climate change. It refuses to implement regulations to reduce emissions, stating that more research on climate change is necessary. Numerous climate change related lawsuits have been brought against the US government and government-funded agencies as a result of the lack of action.

2. Purpose

The purpose of this paper is to provide basic information regarding litigation resulting from the lack of implementation of regulations by the US government concerning climate change and the reduction of greenhouse gases. After discussion of the lawsuits, the author adds additional insight.

3. Background

In the 1997 negotiations at the 3rd Session of the Conference of the Parties (COP3) to the United Nations Framework Convention on Climate Change in Kyoto, Japan, the USA was one of the forerunners of the discussion. At the COP3, the USA signed the Kyoto Protocol and stated it would work to reduce US emissions to 7% below the 1990 level. However, once back in the USA, problems with the Senate accepting the Kyoto Protocol occurred and, in light of a likely defeat, the then President Bill Clinton never submitted the Protocol for ratification. Further setbacks arose in March of 2001 when, after campaigning on the platform that he would work diligently to reduce greenhouse gas emissions, President George W. Bush wrote a letter announcing that he ‘opposed the Kyoto Protocol’ (Bush 2001) because it was an ‘unfair and ineffective means of addressing global climate change concerns’ (Bush 2001). Citing a Department of Energy Report, ‘Analysis of Strategies for Reducing Multiple Emissions from Power Plants’, Bush continued that ‘caps on carbon dioxide emissions as part of a multiple emissions strategy would lead to an even more dramatic shift from coal to natural gas for electric power generation and significantly higher electricity prices compared to scenarios in which only sulphur dioxide and nitrogen oxides were reduced’ (Bush 2001).

The current policy of the USA on greenhouse gas reductions is, as stated by the White House:

President Bush committed the United States to a comprehensive strategy to reduce the greenhouse gas intensity of the American economy (how much we emit per unit of economic activity) by 18 percent by 2012.

Many have found this target unacceptable and frustrations have been shown through the onslaught of lawsuits concerning the United States' policy on climate change.

The lawsuits dealing with the USA and climate change include: Friends of the Earth (FoE), Greenpeace (GP), and the Cities of Boulder, Colorado (CO) Oakland (CA), Arcata (CA), and Santa Monica (CA) versus the Export – Import Bank of the United States (Ex-Im) and the Overseas Private Investment Corporation (OPIC); International Center for Technology Assessment (ICTA), Sierra Club, and Greenpeace versus United States Environmental Protection Agency (US EPA); the States of Connecticut (CT), Massachusetts (MA), and Maine (ME) versus the US EPA; Twelve states, cities, territories, and non-governmental organizations (NGOs) versus the US EPA; Eight States and New York City (NYC) versus US Utilities (including American Electric Power, Southern Company, Tennessee Valley Authority, Xcel Energy, and Cinergy). An additional lawsuit, which is quite contrasting to the others, but still relevant, is Competitive Enterprise Institute (CEI) versus the White House Office of Science and Technology Policy (OSTP).

4. Lawsuits

4.1. Friends of the Earth, Greenpeace, and Cities of Boulder, CO, Oakland, CA, Arcata, CA, and Santa Monica, CA versus the Export – Import Bank of the United States and the Overseas Private Investment Corporation

The first climate change related lawsuit began on 27 August 2002 when non-governmental organizations (NGOs) Friends of the Earth (FoE) and Greenpeace and the City of Boulder, CO, filed suit against two American tax funded agencies, Export – Import Bank and the Overseas Private Investment Corporation. The Cities of Oakland, CA, Aracata, CA, and Santa Monica, CA, joined FoE, Greenpeace, and Boulder shortly after the suit was filed.

The lawsuit was filed by the NGOs and cities ‘on behalf of their members and citizens who are victims of global warming’ (Climate Lawsuit 2002). Specifically included in the affected members/citizens is a biologist from South Carolina whose lifelong work on coral reefs and the recreational pleasure of scuba diving on reefs are threatened. He must also spend a sizeable amount of money to build his home on the South Carolina coast higher so as not to be destroyed by the coastal effects of climate change. Additional affected citizens are a couple who own and operate one of the largest maple syrup operations in Vermont. The couple are worried about the effects of climate change upon their industry: shorter and earlier maple sugaring seasons and, most importantly, the increased mortality of maple trees due to disease and the predicted northward shift of maple trees due to warmer temperatures.

The case brought against Ex-Im and OPIC is that the companies ‘illegally provided over $32 billion in financing and insurance for oil fields, pipelines and coal-fired power plants over the past ten years without assessing their contribution to global warming and their impact on the U.S. environment, as required under key provisions of the National Environmental Policy Act (NEPA)’ (Climate Lawsuit 2002). Ex-Im and OPIC must meet NEPA requirements because the organizations use American taxpayers' money to provide loans and other financing to US corporations for overseas energy development projects. The National Environmental Policy Act requires that all federal agencies conduct environmental assessments on any project that might cause significant environmental impacts on the US environment. An environmental impact statement must then be prepared including alternatives and their mitigations for particular projects and for Ex-Im's and OPIC's overall energy portfolios. Ex-Im and OPIC's projects ‘ultimately will result in over 32 billion tons of carbon dioxide emissions’ (Climate Lawsuit 2002), which might have a significant impact on the rapid rate of climate change. Plaintiffs assert that greenhouse gas emissions from these projects, regardless of where they are emitted, significantly affect the US environment by contributing to climate change. However, Ex-Im and OPIC have not conducted environmental assessments on their projects.

This lawsuit is the first of the many climate change related lawsuits that have been filed against American fossil fuel related industries. The lawsuit is potentially doubly effective because, in addition to taking a stance against government financing for private companies, a win in this case would be a win against industry and the US government. A second distinctive point of this lawsuit is that it relies on the National Environmental Policy Act, which requires assessments of not only impacts, but also of mitigation and alternatives; most other climate change related lawsuits rely on the Clean Air Act that would directly regulate greenhouse gas emissions as air pollutants, if the cases are successful.

4.2. International Center for Technology Assessment, Sierra Club, and Greenpeace versus United States Environmental Protection Agency

This lawsuit began in October 1999 when ICTA and 12 other organizations submitted a petition to the EPA to declare CO₂ an air pollutant under the Clean Air Act and, in compliance with the Clean Air Act, to protect public health by regulating motor vehicle emissions of carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), and hydrofluorocarbons (HFCs), greenhouse gases (The Greening Earth Society 2004). The petition states that, according to a 1998 memorandum from then General Counsel of the EPA, Jonathon Cannon, CO₂ is defined as an air pollutant and, so, should be regulated under the Clean Air Act: ‘EPA's regulatory authority extends to air pollutants, which, as discussed above, are defined broadly under the Act and include SO₂, NO _x , CO₂, and mercury emitted into the ambient air’ (Cannon 1998).

Over a year after the petition was filed, in January 2001, the US EPA opened the topic for public comment for 6 months. The agency received over 50 000 comments, the majority of which supported the regulation of greenhouse gases under the Clean Air Act. However, the federal government took no action regarding the petition. As a result of the agency's inaction, on 5 December 2002, ICTA, the Sierra Club and Greenpeace sued the US EPA for unreasonable delay.

On 29 August 2003, the US EPA declared that, under the Clean Air Act, it lacked authority to address climate change; therefore, it was not able to regulate greenhouse gas emissions. Additionally, the EPA declared that the authority of regulating greenhouse gas emissions resulting from motor vehicles and increased fuel economy fell under the jurisdiction of the Department of Transportation (DOT), not the EPA. Finally, the EPA stated that, according to President Bush's climate change policy, the time for regulating greenhouse gases from motor vehicles was inappropriate.

The EPA's response in summary is: ‘In view of EPA's lack of CAA regulatory authority to address global climate change, the DOT's authority to regulate fuel economy, the President's policy, and the potential foreign policy implications, EPA declines the petitioners' request to regulate greenhouse gas emissions from motor vehicles’ (US EPA 2003). Additionally, on that same day, then General Counsel of the EPA, Robert Fabricant, issued a statement that reversed Cannon's 1998 memorandum: ‘I have determined that the CAA does not authorize EPA to regulate for global climate change purposes. Accordingly, CO₂ and other greenhouse gases cannot be considered “air pollutants” subject to the CAA's regulatory provisions for any contribution anthropogenic greenhouse gas emissions may make to global climate change’ (Fabricant 2003).

The EPA's decision produced a volatile reaction from a number of parties. The EPA declined to regulate greenhouse gas emissions specifically via the Clean Air Act, but yet has not instituted other means to address the dangers of climate change in regard to American citizens. This inaction corresponds with the Bush Administration's refusal to find correlation between the increase in greenhouse gas emissions from humans and the increasing rate of climate change. As stated by James Hansen, director of the NASA Goddard Institute for Space Studies in New York and twice head of the task force to brief the Administration on climate change: ‘In my more than three decades in government, I have never seen anything approaching the degree to which information flow from scientists to the public has been screened and controlled as it is now… [Climate change related] warnings are consistently suppressed, while studies that cast doubt on such interpretations receive favourable treatment from the administration’ (Hansen 2004).

4.3. CT, MA, and ME versus the US EPA

In July 2002, the Attorney Generals of 12 states sent a letter to the US EPA urging the agency to regulate CO₂ under the Clean Air Act. Six months later, the Attorney Generals of Connecticut, Massachusetts, and Maine declared a Notice of Intent to file a lawsuit against the US EPA concerning the lack of regulation of CO₂. Finally, on 4 June 2003, the Attorney Generals filed suit against the US EPA. The lawsuit stated that the agency was not complying with the section of the Clean Air Act that requires that regulations be enforced on pollutants that might be reasonably anticipated to endanger public health or welfare. This lawsuit is of particular importance regarding litigation against the US government because it ‘marks the first time that a state has sued the federal government over global warming issues’ (Reilly 2003).

On 3 September 2003, the three states dropped the lawsuit to join the challenge to the EPA's ruling, described below, declaring that it has no authority to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act.

4.4. Twelve states, cities, territories, and NGOs versus the US EPA

This court case seeks to have EPA ‘act immediately and take a strong national approach to the problem [of climate change]’ (Reilly 2003). On 23 October 2003, the Attorney Generals from 12 states, including California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington; American Samoa and the District of Columbia; and New York City and Baltimore, Maryland sued the US EPA challenging its decisions that the that EPA does not have authority to regulate greenhouse gas emissions and that CO₂ is not a pollutant under the Clean Air Act. Also filing the challenge are a variety of NGOs including: Bluewater Network, the Center for Biological Diversity and the Center for Food Safety, International Center for Technology Assessment, Conservation Law Foundation, Environmental Advocates, Environmental Defence, Friends of the Earth, Greenpeace, National Environmental Trust, Natural Resources Defence Council, Sierra Club, the Union of Concerned Scientists and US Public Interest Research Group (PIRG).

The suit asks that if the Clean Air Act does give the EPA the authority, can the EPA be forced to regulate greenhouse gas emissions. The challenge was filed in the US Court of Appeals for the District of Columbia Circuit. This challenge is now consolidated with the ICTA challenge and is of great significance as it is now includes not only the plaintiffs from the two previously mentioned lawsuits, but also a large number of additional states and organizations opposing the EPA's position.

The challenge is based on the petitioners' belief that, under the Clean Air Act, the EPA does have the authority to regulate greenhouse gas emissions in order to protect public health and welfare. As concluded by the Rhode Island Attorney General Patrick Lynch:

‘An ounce of action on the part of the Bush Administration would be worth a ton of talk. On the one hand, in May of 2002, the administration said, ‘Yes, carbon dioxide emissions cause global warming.’ But, on the other hand, in August of 2003, the administration's own EPA concluded that carbon dioxide is not an air pollutant and, therefore, cannot be regulated. Because the United States is already dealing with the harmful effects of global warming, the American people want less talk and more action now’ (Lynch et al. 2003).

The petition also includes the argument that the US EPA has not conducted health and environmental assessments on power plant emissions, including greenhouse gas emissions, as it is required to do every 8 years under the Clean Air Act. The petition contends that these assessments would prove that greenhouse gas emissions are ‘air pollutants’ under the Clean Air Act and, so, must be regulated. One of the main reference sources from this case is the 2002 State Department US Climate Action Report, which stated the possible dangers from climate change and the direct relationship between greenhouse gas emissions and the acceleration of climate change.

On 12 October 2004, the US Department of Justice filed a legal brief stating that the petition regarding the EPA's decision about regulating CO₂ under the Clean Air Act should be upheld. The brief concluded that the Clean Air Act is not designed to cover greenhouse gas emissions; more definitive science on climate change should be concluded before acting to reduce greenhouse gas emissions; and that, if greenhouse gas emissions from motor vehicles are to be regulated, this should be done by the Department of Transportation, not the EPA (Sansonetti & Clark 2004). The Department of Justice concluded by asking the US District Court for the District of Columbia Circuit to deny the challenge of the 12 states, cities, and NGOs.

Additionally, in November 2004, 10 Attorney Generals from Michigan, Texas, Idaho, North and South Dakota, Alaska, Kansas, Nebraska, Ohio, and Indiana, filed an intervenor brief supporting the EPA in its decision to not regulate CO₂ under the Clean Air Act. The brief states that the Court should deny the challenge of the decision.

The first arguments from this case were heard in the Court of Appeals on 8 April 2005. The court session began with strict questioning on the validity of the arguments from both parties. The plaintiffs were questioned by the three-judge panel on the strength of the connection between human produced greenhouse gases and the rapid rate of climate change, as well as on the possibility of human health dangers from climate change. The two main issues brought up against the US EPA were the inclusion of the word ‘climate’ in the Clean Air Act and the lack of validity in the argument that the EPA cannot regulate greenhouse gas emissions from automobiles because the regulation would overlap the jurisdiction of the Department of Transportation. A verdict is expected to be reached in 3 – 6 months from the April 2005 start date (Stempeck 2005).

The outcome of this lawsuit will be of particular importance due to the number of petitioners and the fact that 12 of 50 states are calling upon the US government to take action in regulating greenhouse gas emissions; on the other hand, 10 states are calling for the government to not regulate greenhouse gas emissions. Additionally, if the EPA again uses the excuse that greenhouse gas emissions cannot be included under the Clean Air Act, it is likely that there will be a demand for the formulation of alternative regulating legislation.

4.5. Eight States and NYC versus US Utilities (including American Electric Power, Southern Company, Tennessee Valley Authority, Xcel Energy, and Cinergy)

On 21 July 2004, the Attorney Generals from California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin and the City of New York decided to take further action to try to reduce greenhouse gas emissions in the USA. They filed suit against the five top domestic emitters of CO₂, American Electric Power, Southern Company, Tennessee Valley Authority (a federal corporation), Xcel Energy, and Cinergy.

The lawsuit states that greenhouse gas emissions contribute to climate change and increase the risk of harm to human health and negative impacts to the environment and economic interests. The emissions are acting as a constant public nuisance, which is prosecutable under federal and state common law. The lawsuit asks for a permanent injunction requiring the utilities to cap their CO₂ emissions and to reduce them by a specified percentage for at least a decade.

This suit is comparable to litigation against tobacco companies filed by Attorney Generals from 46 states in the 1990s concerning the effects of smoking on public health and tobacco companies' attempt to downplay the negative effects. In this case, to prove that the utilities know about the possible dangers from climate change, the plaintiffs use previous statements from the defendants about the acknowledgement of the problems faced from climate change and the fact that the utilities participate in climate change programmes, such as greenhouse gas registries. However, this lawsuit differs from the tobacco companies lawsuits in that it asks for no monetary compensation, only a court order requiring plants to reduce their emissions.

The defendants have attempted to get this case dismissed due to a lack of jurisdiction of the courts on these claims. The reasoning given by the utilities of the lack of jurisdiction includes that the regulation of greenhouse gas emissions is restricted to legislative and executive branches of the US government and that the plaintiffs cannot use the nuisance lawsuit because the injuries from the action are not definite or imminent. Additionally, several of the utilities stated that the lawsuits were unfounded due to the lack of personal jurisdiction. A definition of a public nuisance is

‘A wrong arising from the unreasonable, improper, indecent, or unlawful use of property to the annoyance or damage of another, or the general public. A public nuisance is an interference with the common right of the general public or an indefinite number of persons; an unreasonable interference with the health, safety, peace, or comfort of the community’ (Carney 2004).

The use of public nuisance laws has proven successful as demonstrated by the settlement of more than $25 billion, to be paid over 25 years, won by the Attorney Generals from tobacco companies in 1998. There has been criticism of this lawsuit because the utilities, which comply with federal legislation, are being attacked. Critics believe the issue should remain in Congress. However, if legislation regulating greenhouse gas emissions is not coming from the federal government, action needs to be taken at the next level down.

4.6. Competitive Enterprise Institute (CEI) versus the White House Office of Science and Technology

On 6 August 2003, the Competitive Enterprise Institute, an Exxon-Mobil funded conservative think tank, filed suit against the White House Office of Science and Technology Policy (OSTP). The lawsuit stated that a US government climate change report, National Assessment of the Potential Consequences of Climate Variability and Change, did not meet the objectivity or utility standards of data quality. This lawsuit was the first to be filed under the Data Quality Act (DQA). CEI claimed that computer models used in the assessment were inaccurate and this caused the distribution of unfounded information, concerning climate change predictions, to the public. Additionally, the Competitive Enterprise Institute filed challenges against the EPA and National Oceanic and Atmospheric Administration (NOAA) also on the basis that they were disseminating data to the public that did not meet the standards of the DQA.

After having its petition and request for reconsideration rejected by the EPA and the OSTP, on 4 September 2003, CEI altered its lawsuit to include the violations of the Administrative Procedure Act and the US Global Change Research Act. CEI stated the Administrative Procedure Act was violated in that the Office of Science and Technology Policy distributed false information and did not correct the ‘incorrect’ data, even after a request (by CEI) was made. The lawsuit claimed that the US Global Change Research Act was violated because the National Assessment was a product of an unapproved third party, The Hadley Centre for Climate Prediction and Research. The Hadley Centre produced one of the models (used in the Assessment) that the Competitive Enterprise Institute claimed was unfounded.

This lawsuit became surrounded in controversy when Greenpeace, through the Freedom of Information Act (FOIA), obtained an email that indicated that the White House Council for Environmental Quality (CEQ) might have collaborated with CEI on the lawsuit. The email was from Myron Ebell, director of the CEI, to Phil Cooney, chief of staff at the CEQ and began with ‘Thanks for calling and asking for our help’ (Ebell 2002). The email then continued to discuss how to make the National Assessment seem less important.

After public outcry and calls for an investigation into the cooperation between the CEQ and CEI on the lawsuit, an out-of-court settlement was reached between the Competitive Enterprise Institute and OSTP. The Office of Science and Technology Policy stated that the data in the National Assessment was not ‘subjected to OSTP's Information Quality Act Guidelines’ (OSTP 2003).

This lawsuit is ironic in the way it differs from the other lawsuits. The prior mentioned lawsuits are about the lack of action by the US government to regulate greenhouse gas emissions. CEI's lawsuit demonstrates the conservatism in the USA by attempting to stop the one step that was taken by the US government, the publication of the National Assessment Report. The contrast between liberals and conservatives in the USA is further demonstrated because this lawsuit, through the work of Greenpeace, was not just dismissed, but the CEI and CEQ were scorned due to their cooperation.

5. Conclusion

The US policy on climate change differs widely from that of most of the industrialized countries. In particular, the White House refuses to use legislation to reduce greenhouse gas emissions. The lack of action by the federal government has led to numerous lawsuits by NGOs, State Attorney Generals, cities, among others, against government-funded agencies and organizations. The majority of the lawsuits attempt to force the federal government to regulate greenhouse gas emissions, especially CO₂, to reduce the United States' impact on climate change.

The lawsuits have yet to influence the White House's position, but plaintiffs hope the suits will eventually compel the government to act on reducing greenhouse gas emissions. As stated by New York Attorney General Eliot Spitzer,

‘The vacuum of leadership on global warming by the Bush Administration is a betrayal of the best interests of the American people. This failure to act is harming public health and the environment and will continue to do so for generations to come. With no leadership from Washington, our only recourse is to turn to the courts for relief’ (Spitzer 2003).

With the re-elected Bush administration in power until 2009, the inaction by the US government is expected to continue, resulting in even more climate change related lawsuits until the USA finally joins the international action to reduce greenhouse gases.

Acknowledgements

The author would like to acknowledge two anonymous reviewers commissioned by Environmental Sciences. The author would also like to acknowledge Fouad Laroui, Ronald Shems, Dennis Wichelns, Denver Fowler, and Christine and Jay Blodgett for their help.