Overview
Tort Cases
Defending State Greenhouse Gas Laws
Educating Members of the Bar and the Public Regarding Global Warming Legal Issue

OVERVIEW

The Global Warming Legal Action Project was founded in 2001 by the Civil Society Institute and Attorney Matt Pawa. The Project advances CSI’s goals of promoting social progress on the vital problem of global warming and educating the public and legal community about global warming. The specific goals and activities of the Project are to:

• Develop and apply a tort law approach to global warming that will require major greenhouse gas emitters and fossil fuel companies to internalize the costs of their contributions to global warming;
• Provide legal assistance to states and others in defending global warming laws from legal challenges by industry or other groups opposed to such laws;
• Provide legal assistance to non-profit citizens groups, such as Clean Power Now, Inc., seeking to promote alternative energy developments;
• Serve as a forum for sharing strategy and ideas with attorneys nationwide and worldwide who are seeking to use legal action to promote progress on reducing global warming;
• Educate members of the bar and the public regarding industry’s potential liability for global warming injuries by participating in legal symposia, publication of articles and similar activities; and
• Undertake such additional legal work that will further CSI’s mission of combating global warming and promoting clean energy solutions.

Tort Cases

The AEP Cases. Connecticut, et al. v. American Electric Power Co., et al, (2d Cir. appeal pending); Open Space Institute, et al. v. American Electric Power Co., et al, (2d Cir. appeal pending). In 2004 the Global Warming Legal Action Project filed the first tort case against greenhouse gas polluters in collaboration with the attorneys general of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and the City of New York. The Project represents three land trusts that filed suit at the same time as the States and City. The defendants are electric power corporations that are the five largest emitters of greenhouse gases in the United States. according to the allegations in our case. The Defendants are American Electric Power Co./American Electric Power Service Co., Southern Company, Tennessee Valley Authority, Xcel Energy Inc., and Cinergy Corp. The cases, filed in federal court in New York City, seek injunctive relief, i.e., a court order requiring the power companies to reduce the emissions of greenhouse gases over a period of years. The cases are now on appeal in the U.S. Court of Appeals for the Second Circuit; they were dismissed by the district court under the political question doctrine. To see the briefs in the court of appeals, click here. To see the legal complaints that initiated these cases, click here for the state complaint or click here for the OSI complaint.

The Kivalina Case. In February, 2008 the Project filed a major monetary damages case on behalf of a tiny Inupiat Eskimo village, Kivalina. The village is suffering a massive erosion problem caused by global warming, which has melted the sea ice that formerly protected the village from winter storms. According to the federal government, Kivalina must now be relocated due to the ravages of global warming, at a cost of $100 - $400 million dollars. The case was filed in federal court in San Francisco against fourteen electric power corporations, nine oil companies and one coal company. The defendants will be filing their response to the lawsuit on June 30, 2008. To see the legal complaint that initiated this case, click here.

Defending State Greenhouse Gas Laws

The Pavley Cases. Green Mtn. Chrysler Plymouth Dodge Jeep v. Crombie, 2007 U.S. Dist. LEXIS 67617 (D. Vt. 2007), appeals pending, Nos. 07-4360-CV, 07-4342-CV (2d Cir.); Central Valley Chrysler-Jeep, Inc. v. Witherspoon, No. CV-F-04-6663 (E.D. Ca.). These cases derive their nickname from (Fran Pavley) http://en.wikipedia.org/wiki/Fran_Pavley, the California legislator who sponsored the law that is now being challenged by the automobile industry. Under the federal Clean Air Act, California may set more stringent limits on automobile pollution and other states may then adopt California’s standard. Acting under this authority, California in 2002 enacted a law, A.B. 1493, requiring reductions in greenhouse gas emissions from new motor vehicles sold in the state. In 2004 the state adopted regulations to implement the law. The law is projected to reduce greenhouse gas emissions in California from passenger cars by 18 percent by 2020 and 30 percent by 2030. Fifteen other states have now adopted this law. The Project provides legal representation to non-profit environmental organizations who have intervened in three parallel cases filed against the states of California,Vermont and Rhode Island by General Motors Corp., Chrysler Corp., the Alliance of Automobile Manufacturers, and the Association of International Automobile Manufacturers. The industry is seeking to strike down these new state laws regulating greenhouse gas emissions. The industry argues that the state laws are preempted by the federal statute regulating fuel economy and by the federal foreign affairs power.

The Vermont case was tried in 2007 and, in a historic and sweeping victory after an intense and hard-fought litigation, the court upheld the law. The California case also resulted in a legal victory for the state and environmental groups when the court rejected the industry’s major claims in a summary judgment order. The Vermont case is notable for being the first in which the science of global warming was put on trial. The court held the science of global warming to be legally reliable and found global warming presents real and severe threats that merit prompt action to reduce emissions. Highlights from the Vermont Court’s decision include:

• "That global warming is taking place as a result of human emissions of carbon dioxide and other greenhouse gases, and that its consequences are likely to be harmful, is widely accepted in the scientific community."
• "The fact that global warming will not be solved by changes in any one industry or by regulation of any one source of emissions in no way undercuts the vital nature of the problem or the validity of partial responses; rather, it points to the necessity of responses, however incomplete when viewed individually, on any number of fronts." And "[e]vidence presented to this Court also supports the conclusion that regulation of greenhouse gases emitted from motor vehicles has a place in the broader struggle to address global warming."
• The court found that, according to the evidence, a business-as-usual approach to greenhouse gas emissions will result in global warming by the end of this century so large that it would commit the large ice sheets of Greenland and Antarctica to a cycle of destruction. The end result, according to the evidence, is that "the entire East Coast of the United States would be underwater, including most of Florida. Populous areas such as Bangladesh and many parts of China would also be underwater."
• "Climate change also presents a risk of species extinction," the court found, because "temperature zones are moving more rapidly than migrations are occurring" and "many species are confined to specific reserves so that migration is not a realistic possibility."
• "Scientific evidence likewise emphasizes the severity of the effects that global warming may have on the state of Vermont in particular. Dr. Barrett Rock testified that global warming poses severe risks to Vermont's economy; specifically, Rock outlined risks to the continued survival of maple trees in Vermont, as well as more short-term effects on foliage, maple sugar production and the ski industry."

The Court held, in sum, that the state law, enacted under authority from the federal Clean Air Act, was within the legislative and executive authority of the States to determine "the proper balance between a small step toward averting potential environmental disaster and its potential effects on the automobile industry."

The automobile industry appealed in October 2007 to the United States Court of Appeals for the Second Circuit, where the case is now pending.

• To read the district court’s 240 page opinion, click here.
• To read news reports regarding the case, click here.
• To read the legal briefs of the automobile industry filed in the Second Circuit Court of Appeals, click here and here .
• To read the brief of the United States in the Second Circuit Court of Appeals, click here.

The State of Vermont and the environmental groups will file their brief in June, 2008.

Providing Legal Assistance to Non-Profit Groups Promoting Clean Energy Development

Cape Wind. The Global Warming Legal Action Project provides representation to Clean Power Now, a citizens group formed to promote clean energy that supports the project to build a wind park in Nantucket Sound. CPN has intervened in support of the Cape Wind project in the Massachusetts Energy Facility Siting Board ("State Siting Board") case. This legal intervention represents a new and important moment for the environmental conservation movement: actively supporting clean energy developments that are environmentally sound. Most environmental litigation seeks to oppose developments. Here we are asserting the positive vision of a clean energy future on behalf of the many citizens whose voices are represented by Clean Power Now.

The State Siting Board case was initiated by Cape Wind when the Cape Cod Commission denied the project a permit for the transmission line. The state has jurisdiction only over the transmission line inasmuch as the wind park itself will lie entirely in federal waters. CPN has forcefully advocated for the State Siting Board to exercise its full authority to issue a composite of all state and local permits that will resolve, once and for all, the state law issues relating to Cape Wind. To read CPN’s brief on this matter of first impression under Massachusetts law, click here. The opponents of the Wind Farm have also intervened in the State Siting Board case and are making a panoply of arguments to try to derail the project by requiring Cape Wind to engage in a dozen separate appeals for each state and local permit required for a simple transmission line.

Educating Members of the Bar and the Public Regarding Global Warming Legal Issues

Project Attorneys frequently speak at bar association meetings and legal symposia regarding the legal issues of global warming. When we started te project in 2001, global warming law was a non-entity. Today, hardly a month goes by without a legal symposium or bar event dedicated to the topic. Our project attorneys have been featured at many of these events, including the American Law Institute-American Bar Association’s annual course on global warming and the law in Washington, D.C., the ABA Section of Environment, Energy and Resources’ annual meeting in Keystone, Colorado, the annual Public Interest Environmental Law conference at the University of Oregon Law School, the Institute for Energy Law, the National Lawyers Guild annual meeting, the Boston Bar Association, and others.