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Going to court over climate change

September 8, 2006 By Amanda Leigh Haag This article courtesy of Nature News.

Should the government regulate greenhouse gas as a pollutant? As the Supreme Court takes on one such case, Amanda Leigh Haag finds out who's suing whom.

What is happening?

The problem of climate change just landed squarely on the desk of the US Supreme Court. Twelve states, led by Massachusetts, plus a handful of cities and non-profit organizations are confronting the Environmental Protection Agency (EPA) on its failure to regulate CO2 emissions from motor vehicles.

The case, called Massachusetts v. EPA, originates in a petition from way back in 1999. Under the Clinton Administration, the EPA took the position that it had authority to regulate greenhouse gas emissions under the Clean Air Act. So a group of environmentalists officially asked the EPA to exercise that authority over cars.

But in August 2003, under the Bush Administration, the EPA reversed its stance, claiming that it did not have authority to regulate greenhouse gas emissions. And it stated that if it did have the authority, it would choose not to regulate emissions.

It has taken a while, but this June the Supreme Court agreed to hear the case. Both parties are now filing their sides of the story in the run-up to the hearing.

What's at issue?

The EPA doesn't dispute that carbon dioxide is playing a role in climate change, just whether or not it has the authority to regulate greenhouse gases. The EPA isn't obliged to regulate all atmospheric gases under its remit; usually just those considered an "endangerment to public health and the environment". The plaintiffs would like the court to rule both that the EPA has authority, and that it must apply this rule in deciding whether to regulate.

Has anyone tried to sue the US government over climate change before?

Yes. In a case known as Friends of the Earth v. Watson, which began in 2002, two non-profit organizations and four cities are challenging two US government agencies: the Export-Import Bank of the United States and the Overseas Private Investment Corporation. The lawsuit alleges that the federal government provided more than US$32 billion to fossil fuel projects such as oil fields, pipelines and coal-fired power plants, without considering the impacts on global warming as required under the National Environmental Policy Act (NEPA). This case went before a US District Court in California in April 2006; the parties are still awaiting a decision.

In a case known as New York v. EPA, ten state attorney generals filed suit against the EPA in spring 2006, asking the agency to enforce reductions in air pollution from new power plants. This case is on hold until after Massachusetts v. EPA, since the question of whether the EPA has the authority to regulate emissions is central to both.

Have other important climate change cases been filed in the United States?

One fairly high-profile case, which emerged in 2004, involves a suit against major US power companies. Connecticut v. American Electric Power, Inc. alleges that CO2 emissions constitute "ongoing contributions to a public nuisance". It asks that the companies reduce their CO2 emissions by at least 3% a year over a period of ten years.

This case was dismissed, but the plaintiffs attorney generals from eight states including the lawyers behind the New York v. EPA case are appealing. The plaintiffs argued before the court of appeals in June and are still awaiting a decision.

Has anyone ever sued in the other direction, to allow more emissions?

Yes; in some cases the tables are turned. In Central Valley Chrysler-Jeep, Inc. v. Witherspoon, automakers are suing California, hoping to block a state law that would require new vehicles to cut their emissions by 30% by 2016. The automobile companies allege that federal vehicle fuel economy standards should preempt state regulation. Automakers have also sued the states of New York and Vermont.

The courts dismissed the New York suit on the grounds that it was premature. The other two cases are proceeding.

Has this type of legal action ever happened in other countries?

In July 2005, an environmental group filed suit against the Australian government for failure to consider greenhouse gas emissions from burning coal when it performed environmental assessments of two large coal mines. The federal court dismissed the challenge.

Two non-profit organizations in Germany filed suit against the federal government in 2004. They claimed that the government funnels billions of dollars into energy, mining and transportation projects through an export agency, contributing to a steep rise in greenhouse gas emissions. As part of a settlement made in January 2006, the German government will be required to show documentation for how its export credits have impacted climate change.

What's likely to happen next?

The plaintiffs in Massachusetts v. EPA filed with the Supreme Court last week, with 14 different parties submitting supporting briefs. These included briefs from two separate power companies, a group of four former EPA administrators, and climate scientists. The EPA is expected to file in October. Decisions on this case will probably be made in early to mid 2007.

In the meantime, more cases may certainly spring up. Some argue that even if they don't win in the courts, they serve to bring attention to the cause. "People are turning to the courts to try to force action on climate change," says Marilyn Averill, a lawyer based in Boulder, Colorado, who authored a chapter on litigation in a book on communicating climate change1. "These cases are making climate more visible, both within the government and within society at large."

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  1. Moser S. C.& Dilling L., et al. Creating a Climate for Change: Communicating Climate Change and Facilitating Social Change (Cambridge Univ. Press, in the press). , (2006).


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