HOW TO INSTITUTE CLIMATE LITIGATION

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28 november 2017

5 ways to pick a fight on climate change

Benjamin Hulac, E&E News reporter Published: Tuesday, November 28, 2017

Sharp lawyers are finding clever ways to prod the government and businesses to address climate change.

In California, city officials are arguing that rising waters threaten cities and their residents. A lawsuit in Oregon by a bunch of kids is pressing the government to quit fossil fuels. And immigration hard-liners are demanding that border cops calculate the carbon emissions of migrants.

Many of these novel cases came after President Trump took office, but others were percolating long before.

Here are five categories of uncommon court cases and legal ideas to address climate change facing the government and the private sector today.

1.Blaming companies for sea-level rise


When a New England environmental group, the Conservation Law Foundation, sued Exxon Mobil Corp. last year for failing to secure storage tanks near Boston Harbor from sea-level rise, that case was the first of its kind (Climatewire, Oct. 3, 2016). "Exxon has done nothing to harden this facility against climate impacts that we know are coming and that Exxon recognizes are coming," said Bradley Campbell, who leads the group.

Exxon is fighting to dismiss the suit, but copycat cases have popped up. Campbell's group sued Shell Oil Co. in Rhode Island this summer over one of its bulk terminals — a facility that stores toxic chemicals. It used similar accusations.

Rising waters, driven by climate change, pose a threat of cracking open those tanks, the CLF said.

"The Providence Terminal is at risk from coastal flooding caused by sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges — all of which will become, and are becoming, worse as a result of climate change," according to the complaint. "Shell has not implemented actions to address, mitigate, or eliminate these vulnerabilities."

San Francisco and Oakland also have pending lawsuits against five of the world's biggest oil companies, which they say should pay for the construction of sea walls and the cost to raise low-lying buildings.

"We can't wait until it's upon us," Barbara Parker, the city attorney for Oakland, said in a recent interview. "That's the urgency of the situation."

And Imperial Beach, Calif., and two nearby counties sued dozens of fossil fuel companies and their trade groups in July, accusing them of worsening already damaging sea-level rise (Climatewire, July 18).

2.The Constitution and climate

For someone suing the U.S. government, Kelsey Juliana seemed at ease in April on the Supreme Court steps.

She's the namesake of a landmark lawsuit — Juliana v. United States — filed by 21 children against the Obama administration in 2015. They argue that the government has undermined the rights of its citizens for decades by allowing greenhouse gases to accumulate in the atmosphere.

The plaintiffs' case rests on the public trust doctrine — the maxim that natural resources, such as lands and waterways, exist for the use and benefit of citizens and that the government must protect them. The same idea applies to the climate, according to Julia Olson, one of the lead attorneys for the plaintiffs.

Our Children's Trust, the environmental group behind the case, is backing similar cases against state officials in Alaska, Colorado, Maine, Massachusetts, New Mexico, North Carolina, Oregon and Washington.

"I think one of their objects also is to put climate science on trial," said Ethan Shenkman, a partner in the environmental division of Arnold & Porter Kaye Scholer LLP.

Through discovery, the plaintiffs can request documents and question government officials about climate change and policies to address it. Shenkman, who was deputy general counsel at U.S. EPA during the Obama administration, said the plaintiffs are testing to see if and how the Trump administration disputes established climate change evidence. "That in and of itself will be interesting to watch," he said.

And children elsewhere, including a 7-year-old in Pakistan, have sued their governments with similar arguments.

"[C]hildren of today and the future will disproportionately suffer the dangers and catastrophic impacts of climate destabilization and ocean acidification," Ridhima Pandey, a 9-year-old Indian girl, told her government in a petition in March.

She is suing to prompt India to slash carbon emissions to levels climate scientists say would be safe (Climatewire, March 31).

3. State AGs Fight Washington

"The state AG category is a whole bunch of things," said Richard Revesz, a professor at New York University School of Law.

Indeed, it is.

"I'm worried and yet determined," Maryland Attorney General Brian Frosh (D) said in September, speaking in New York City at an event organized by NYU Law's State Energy & Environmental Impact Center. "We'll continue to sue the bastards."

Frosh and fellow Democratic attorneys general, including California's Xavier Becerra and New York's Eric Schneiderman, have been thorns in the Trump administration's side since the president was sworn in.

Becerra filed a lawsuit against EPA in August, accusing Administrator Scott Pruitt of withholding documents about his possible conflicts of interest (Climatewire, Aug. 14).

In October, Becerra and New Mexico Attorney General Hector Balderas (D) sued the Trump administration for scrapping the so-called valuation rule so fossil fuel companies would have to pay less in royalties to the U.S. government. Democrats have lined up to defend the Clean Power Plan, a key climate regulation of the Obama administration.

Maura Healey (D), the Massachusetts attorney general, pledged "to protect the Clean Power Plan from the climate change deniers in this administration who are trying to move us backwards" (Climatewire, Oct. 10).

And again, in September, Becerra, Schneiderman and other attorneys general sued the Trump administration over vehicle standards.

They asked a federal appeals court to throw out a decision by the Department of Transportation to delay a rule to raise fines for automakers that fail to meet fuel economy targets (Greenwire, Sept. 11).

4. Battles over regulations

The legal minds behind the Juliana case want a court to rule that the constitutional rights of their plaintiffs have been violated, and to force the U.S. government to draft a plan to phase out fossil fuels.

To use the terminology of Joe Minott, director and chief counsel of the Clean Air Council, that's a "ceiling" argument.

This month, Minott's group and two young children — one is 7, the other 11 — sued the Trump administration for trying to roll back climate regulations.

In an interview, Minott said his case makes "the floor argument."

Basic facts, in climate science and otherwise, must be the foundation for regulation, he said, adding that the government must used established research to repeal climate rules.

"They can't use junk science to undo that," Minott said.

"The government is relying on junk science to wage a war on facts, data and reliable principles and methods arising out of scientific, technical and specialized knowledge," the plaintiffs said in court papers.

Meanwhile, a far-right anti-immigration group wants the federal government to pay attention to climate data, too.

Advocacy groups that want "population stabilization" in the United States — for there to be fewer people allowed in — are suing the Department of Homeland Security for failing to account for greenhouse gas emissions in its day-to-day activities.

Since Americans consume more per person than many foreigners, immigrants could eventually emit more by living in the United States, according to a legal wing of the Federation for American Immigration Reform (Climatewire, July 25).

"Those foreign nationals that settle in the United States produce an estimated four times more CO2 in the United States than they would have in their countries of origin," the plaintiffs said.

The Southern Poverty Law Center considers FAIR a hate group.

The case is pending in a Federal California Court

5. The Holy Grail of Climate Litigation

Environmentalists and lawyers have salivated over grilling fossil fuel company executives in court about what their industries knew about climate change, and when they knew it.

A federal racketeering case, similar to the lawsuit against the tobacco industry in the 1990s, could make that happen.

Take Exxon Mobil Corp., which has known about climate change since the 1970s but funded public relations efforts in the decades that followed to delay climate regulation and muddy scientific facts.

Sharon Eubanks was the top attorney in the Justice Department's case against tobacco companies — United States v. Philip Morris USA, et al. She sees parallels between how cigarette companies sought to confuse the public about the dangers of smoking and fossil fuel companies' efforts to distort the evidence of climate science.

There could be grounds for a racketeering case, filed under the Racketeer Influenced and Corrupt Organizations Act, or RICO, she said.

"It's been done before in a very similar situation," Eubanks said at Columbia Law School in October, adding that Exxon could be ripe for a RICO case. "It just makes it seem like a very natural fit."

A peer-reviewed study published in Climatic Change found that 90 businesses were to blame for roughly 57 percent of the increase in carbon dioxide since 1880 (Climatewire, Nov. 16).

That precision helps lawyers zero in on whom to sue.

"The advances in climate science, regarding attribution, the ability to link greenhouse gas emissions to quantifiable increases and to temperature rises, sea-level rises and extreme weather, they make litigation more practical, not just more possible," Eubanks said.

"We have documentary evidence from the company's own files about what they knew and when they knew it," Eubanks said of Exxon, which has been studying climate change since the 1970s. "That doesn't present an issue of plausible deniability, now, does it?"


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