Global Warming: The Litigation Heats Up

Publication Date: January 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

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Abstract:

The scientific, economic, and political questions surrounding global warming have long been with us. This report focuses instead on a relative newcomer: the legal debate. Though the first court decisions related to global warming appeared over a decade ago, the quantity of such litigation has increased significantly in recent years.

The court cases, decided and pending, address four principal issues. First, a two-parter, is whether EPA has the authority under the Clean Air Act (CAA) to regulate greenhouse gas (GHG) emissions, from either stationary or mobile sources. The follow-up question: If EPA has such authority, does the state of scientific knowledge about GHGs and global warming, and EPA's past pronouncements on the topic, create a statutory duty on EPA's part to act? The active litigation in this area is a pending suit by 12 states and others challenging EPA's denial of a Clean Air Act "section 202 petition" seeking to have the agency regulate GHG emissions from automobiles.

Second, is state regulation of GHG emissions from motor vehicles (limited to California at the moment) preempted by federal law? In California, car dealers have challenged recently adopted state regulations imposing limits, beginning in model year 2009, on emissions of four types of GHG emissions from cars and light-duty trucks.

Third, independent of any statute, can the common law of nuisance be used to force cutbacks in GHG emissions? Invoking the federal and state common law of public nuisance, eight states and New York City are now suing five electric utility companies, chosen as allegedly the five largest CO2 emitters in the U.S. Three nongovernmental organizations have brought a similar suit against the same defendants, adding a private nuisance claim.

And fourth, do the alleged global warming impacts of federal agency actions allow a National Environmental Policy Act challenge? This issue is the only one covered in this report where in addition to the pending suit, there are decided cases. In the pending action, environmental groups and the City of Boulder, Colorado sued federal agencies on the ground that they were not assessing the global warming impacts of overseas projects made possible through their efforts.

Finally, the report discusses whether the United States, as a major emitter of GHGs that has declined to participate in the Kyoto Protocol, could be sued under international law for global warming impacts. No such claims have been filed as yet.

Overall, it seems that plaintiffs pressing the environmental side of the argument in the pending cases face an uphill climb. In all their cases, establishing standing and proving causation will be significant hurdles, given the nascent state of global warming science. Their best chances may lie with the petition for review of EPA's section 202 petition denial, where at least they have the plain meaning of statutory language on their side.