Climate Change Litigation: A Survey (CRS Report for Congress)
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| Release Date |
Revised May 14, 2009 |
| Report Number |
RL32764 |
| Report Type |
Report |
| Authors |
Robert Meltz, American Law Division |
| Source Agency |
Congressional Research Service |
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Summary:
The scientific, economic, and political questions surrounding climate change have long been with us. This report focuses instead on a relative newcomer: the legal debate. Though the first court decision related to climate change appeared 19 years ago, such litigation has proliferated in just the past six. Representatives of some suing organizations and states acknowledge that a prime cause for this litigation surge was inaction by Congress and the executive branch during the George W. Bush Administration with regard to mandatory constraints on greenhouse gas (GHG) emissions.
The court cases, decided and pending, arise in eight contexts. The first is the Clean Air Act (CAA). In Massachusetts v. EPA, the Supreme Court held that as to mobile sources of emissions (cars, trucks), the U.S. Environmental Protection Agency (EPA) has authority under the act to regulate greenhouse gas (GHG) emissions. This decision puts pressure on EPA to move forward as well with regulation of GHGs from stationary sources (power plants, factories).
Second, litigation under wildlife statutes, particularly the Endangered Species Act, raises the possibility that the impacts of climate change on wildlife may constrain private activities that emit GHGs.
Third, energy statutes have been invoked. It has been held, for example, that under the Energy Policy and Conservation Act, the United States must monetize the benefits of reduced carbon emissions as part of setting light-truck fuel economy standards.
Fourth, various statutes requiring federal government analysis and information disseminationâthe National Environmental Policy Act (NEPA), Global Change Research Act (GCRA), and Freedom of Information Act (FOIA)âhave generated climate-change litigation. NEPA suits make up the most numerous subset of this category. Courts agree that if a plaintiff can establish standing, NEPA can be used to compel agency consideration of the climate change effects of its actions.
Fifth, common law tort theories such as nuisance have been invoked, not yet successfully, to force cutbacks in GHG emissions, or payment of damages. Several cases are on appeal.
Sixth are the preemption suits. These challenge state regulation of GHG emissions from motor vehicles as preempted by the federal corporate average fuel economy standards or federal authority over foreign policy. The two rulings thus far have rejected these challenges, but are on appeal. California's suit attacking EPA's denial of its request for a waiver of federal preemption under the Clean Air Act has now been stayed, pending EPA reconsideration of the denial.
Seventh, chiefly with respect to coal-fired power plants, are suits under state utilities laws.
And eighth, one case asks whether existing general liability insurance policies cover climate-change-related liability.
Finally, the report discusses international law aspects of a nation's contributions to climate change, and offers some overview comments.
