State AGs on Global Warming Litigation
January 10, 2008David B. Rivkin, Jr., Lee A. Casey
Many state Attorneys General across the country are becoming increasingly involved in global climate change (GCC) litigation, even on the federal level. Federal policy on this issue has involved a rejection of the 1997 Kyoto Protocol, which would have imposed mandatory greenhouse gas (GHG) emissions reductions on the United States and other industrialized nations, but not on burgeoning "third world" economies, by both the Clinton and Bush Administrations. In 2001, President Bush made clear that his Administration would not work to impose mandatory greenhouse gas (GHG) emissions caps on American industries, both because such caps would damage U.S. economic prospects and would not actually solve what is manifestly a global problem. United States policy is to address GCC issues on the international level with the ultimate goal being an approach to GCC based on sound scientific principles and a genuinely global effort that includes (unlike the Kyoto Protocol) both industrial and developing nations in any strategy for limiting man-made GHG emissions.
Since that time, activists at the state and local levels have sought to adopt their own GCC measures, and several state Attorneys General have become leaders in this effort. Their most notable success has been the Supreme Court's 2007 decision in Massachusetts v. EPA, 127 U.S. 1438 (2007). That case was brought by California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, along with a number of activist groups, and challenged EPA's 2003 determination that it lacked Clean Air Act authority to regulate carbon dioxide as a "pollutant" for purposes of controlling "global warming." The Court ruled that EPA did have this authority and remanded for further agency proceedings on whether and how to regulate. Given the very real standing issues raised in this case (especially regarding causation and remediability), the Court's resolution of the merits was a significant win for the State petitioners and will likely embolden their efforts in this area.
A number of other global climate change cases have, in fact, been brought and are currently pending in the lower federal courts, including Connecticut v. American Electric Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005). This case involves federal common law "public nuisance" claims, based on carbon dioxide emissions and their alleged relation to "global warming," against five of the country's largest electric utilities. The plaintiffs include California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, along with New York City and a number of private groups. Judge Loretta A. Preska, United States District Court for the Southern District of New York, dismissed the action as raising nonjusticiable political questions in September, 2005. The case is now on appeal to the United States Court of Appeals for the Second Circuit. A similar case, brought by the California Attorney General and alleging "public nuisance" against the automobile manufactures on account of motor vehicle GHG, was also dismissed on political question grounds in September. See California v. General Motors, No. C06-05755 (N.D. Ca. Sept. 17, 2007).
The Attorneys General, however, have not been discouraged. As recently reported by Christopher Horner in his "Planet Gore" National Review Online Blog, a number of state Attorneys General and environmental interest groups are evidently working on a litigation strategy document "providing a roadmap for cooperatively replicating the tobacco litigation of a decade ago in the 'global warming' context."
Horner further indicates that, in an effort to monitor these activities more closely - and especially the close and cooperative relationship between GCC activists and Attorneys General - a series of freedom of information requests have been submitted to AG offices in California, New York, New Jersey, Connecticut, Vermont, Washington and Massachusetts. These requests seek documents detailing communications to and from activist groups and those offices that reference the tobacco litigation and prospects for a similar campaign related to the GCC issue.
In the short term, however, there seems little doubt that California's Attorney General, former Governor and Democrat presidential hopeful Edmund G. (Jerry) Brown, Jr., will be leading the global warming charge. With its Global Warming Solutions Act of 2006 (AB 32), the California legislature has commanded that the State's greenhouse gas emissions be reduced to 1990 levels by the year 2020. The law requires California's Air Resources Board to establish a statewide GHG emissions cap by January 1, 2008, and to promulgate implementing regulations by January 1, 2011. In advance of these measures, Attorney General Brown has initiated his own campaign to force immediate GHG emissions reductions. In particular, he has embarked upon a statewide effort, pursuant to the California Environmental Quality Act (CEQA), to force California's counties to adopt global climate change plans.
Most recently, Brown announced the settlement of a suit he brought against San Bernardino County challenging its general CEQA plan. The county agreed to undertake a 30-month "Greenhouse Gas Reduction Plan," including inventories of GHG emission sources and targets for reductions in emissions attributable to the county's land use decisions and other governmental operations. Brown, who has filed CEQA comments on the plans of at least eleven other California counties, has indicated that the San Bernardino plan is a "model that I encourage other cities and counties to adopt." See Brown Announces Landmark Global Warming Settlement Press Release (Aug. 21, 2007).
Similarly, Brown appealed a decision by Contra Costa County (in the San Francisco Bay Area) to permit the expansion of an existing ConocoPhillips refinery and thereby obtained an agreement from the company to adopt a GHG reduction plan. This plan includes a multi-million dollar "offset" program in the Bay Area and elsewhere in California. On the federal level, Attorney General Brown has petitioned EPA to establish carbon dioxide limitations for all ocean going vessels entering American ports and threatens to sue the Agency if it fails to approve California's pending request for a section 209(b) Clean Air Act waiver. This provision permits California - once a waiver is granted - to impose new motor vehicle and engine emissions standards that may be more stringent than comparable federal regulations. In this instance, it would permit California to regulate GHG emissions from new motor vehicles and motor vehicle engines sold in the State, and grant of the waiver would also permit other States to adopt the California standards; fourteen have indicated a desire to do so.
There is every reason to believe that Attorney General Brown, along with many other state Attorneys General, will continue to be active in this area.