Climate Change: Case Law

Climate Change: Case Law

di Joseph DiMento

1. Introduction

As the evidence of the reality of human caused climate change becomes, some may say again, incontrovertible so too does the urgency of implementing effective interventions to try to control its causes and adapt to its effects. We are now well into the third decade of international efforts to address climate change through international science based cooperation.
Probably this multinational diplomatic model will continue and there are some good reasons for concluding that it should. However, in the face of conclusions that it has been insufficiently successful, a number of concerned and activist groups are looking elsewhere, beyond the Intergovernmental Panel on Climate Change and regional actions. The strategies they advocate or suggest are numerous; they fall along a continuum from species or area specific law and policy initiatives to the topic addressed in this column: adversarial actions addressed to target the sources of greenhouse gases and the governments which have failed to manage those sources.
The focus on immediate actions is motivated by an urgency which cooperative international efforts for the most part have not recognized. Many observers conclude that the climate situation has become desperate. In the Arctic for example, in both the United States and Canada, we have seen environmental conditions that give pause for thought about whether standard international law and policy approaches are sufficient.
New endangered species are arriving in the Arctic; radium levels are rising; there is stronger evidence for fundamental shifts in some elements of the cryosphere, the ocean, and ecosystems1)AMAP, Snow, Water, Ice and Permafrost. Summary for Policy Makers, Arctic Monitoring and Assessment Programme (Norway 2017) 8; and see K. HOSSAIN, Invasive Species in the Arctic: Concerns, Regulations, and Governance in Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic (Yale University Press 2015). and the Arctic is experiencing unprecedented temperatures. In Deadhorse, Alaska, for instance, the temperature reached 85 degrees Fahrenheit on July 13, 2016.

2. Adversarial Legal Strategies

Adversarial actions initiated by individuals or groups to address mitigation of or adaptation to climate change have various names depending on the legal system in which they are initiated and the legal framework in which they reside. In North America, entities of various kinds can litigate in national courts, petition in international tribunals or institutions, or make submissions to specialized international institutions such as under the North American Free Trade Side Agreement2)Any citizen or NGO may make a submission to NAFTA concerning whether a party to the agreement is failing to effectively enforce its environmental laws. NAF- TANow.Org «http://www.naftanow.org/agreement/default_en.asp» accessed November 2017..
Here we explain the legal theories and causes of action under which adversarial legal strategies are employed, and we lay out details of ongoing and potential actions in North America3)For a comprehensive inventory of actions throughout the world see ‘Sabin’ «http://climatecasechart.com/us-climate-change-litigation/»accessed 29 Jan. 2018. Litigation goals of advocates vary: some want to move to zero emissions; some wish to keep all coal in the ground; some seek sustainable development; some emphasize preservation; and some push for remediation or compensation.
Actions aim to enforce responsibilities of governments and agencies, hold greenhouse gas emitters accountable for damages, and/or bring attention to climate change phenomena.
In the United States, the number of climate change claims filed is large and it has increased significantly in the past fifteen years4)‘Sabin’ «http://climatecasechart.com/search/» accessed 28 January 2018.. According to the Sabin Climate Center’s comprehensive database on climate change litigation, in 2016, 106 climate change cases were filed. There have been a total of 909 climate change related claims brought before U.S. courts5)Sabin’ «http://climatecasechart.com/us-climate-change-litigation/»accessed 29 Jan. 2018.. In Canada there have been over a dozen cases6)Sabin, ibid., and see B. H. POWELL-J. YAM, Judicial Notice of Climate Change, A Symposium on Environmental Prosecutions in the Classroom: Evidentiary Issues in Environmental Prosecutions and Hearings. May 6-7, 2015, University of Calgary.. These cases have been brought under both state law and federal law, and under var- ious theories of liability7)Comer v. Murphy Oil, 839 F.Supp.2d 849 (bringing claim under state tort law); Juliana v. United States; No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146 (bringing claim under the public trust doctrine); WildEarth Guardians v. Jewell, 738 F.3d 298 (D. Mont. 2013) (bringing claim under the National Environmental Policy Act (NEPA; Humane Society of the U.S. v. McCarthy, 209 F. Supp. 3d 280 (D.C. 2016) (bringing claim under the Clean Air Act (CAA)). See also Columbia Law School, ‘Sabin Center for Climate Change Law’ «http://climatecasechart.com» accessed 28 January 2018, for a full list of law suits brought under various theories of liability in U.S. courts.)) – federal statutory claims, such as those under the United States Clean Air Act (CAA)8)See e.g., Petition for Change of Status of HFCs Under Clean Air Act Section 612 (Significant New Alternatives Policy) (2015). or the National Environmental Policy Act (NEPA)9)See e.g., Indigenous Environmental Network v. U.S. Dept. of State, No. 4:17-cv-00029 (D. Mont. 2017).; constitutional claims10)See e.g., Clean Air Council v. United States, No. 2:17-cv-04977 (E.D. Pa. 2017) (seeking declaration that the U.S. government cannot rollback regulations that increase the frequency or intensity of climate change based on faulty science, as it violates the plaintiffs’ constitutional rights to a “life sustaining climate system.”).; state law claims11)See e.g., Foster v. Dept. of Ecology, 2015 WL 7721362, No. 14-2-25295-1 SEA (Wash. Sup. Ct. 2015); Sinnok v. Alaska, No. 3An-17 (Alaska Sup. Ct. 2017).; and common law theories of tort12)See e.g., Bell v. Cheswick Generating Station, 734 F.3d 188, 196 (3d Cir. 2013) (holding CAA did not preempt residents’ state tort claims against power company for air pollution); Comer v. Murphy Oil, 839 F.Supp.2d 849, 865 (S.D. Miss. 2012), aff’d on other grounds, 718 F.3d 460 (5th Cir. 2013) (holding that the CAA preempted property owners’ state tort claims for emissions causing global warming). and the public trust doctrine13)See e.g., Juliana v. United States, No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146 (D. Or. Nov. 10, 2016); Filippone ex rel. Filippone v. Iowa Dep’t Nat. Resources, 829 N.W. 2d 589 (Iowa App. 2013); Funk v. Wolf, 144 A. 3d 228 (Pa. App..

3. The United States

In Massachusetts v. EPA14) 549 U.S. 497 (2007). the Supreme Court held that the EPA has the authority to regulate greenhouse gas emissions as a pollutant under the power delegated to the EPA from Congress in the CAA. Since then, lawsuits have challenged the CAA regulations that the EPA has promulgated and the EPA’s failure to promptly issue regulations for sources of greenhouse gases15)See e.g., Sierra Club v. EPA, 762 F. 3d 971, 974–976 (9th Cir. 2014); REDOIL v. U.S. EPA, 715 F.3d 1155 (9th Cir. 2013).
In Resisting Environmental Destruction on Indigenous Lands (REDOIL) v. U.S. EPA, (2013) environmental groups challenged the EPA’s grant of two air permits authorizing exploratory drilling in the Arctic Ocean16)716 F.3d 1155.. The permits granted were “major source permits,” allowing Shell to emit more than 250 tons of pollutants annually. Environmentalists argued that greenhouse gases and black carbon from the ships would accelerate the melting of snow pack and sea ice in the Arctic, having detrimental effects on Native Alaskan communities. The Ninth Circuit denied the environmentalists’ petition for review, and upheld the EPA’s interpretation of the CAA to grant these permits17)ibid 1164..
Many cases brought under the CAA have seen results similar to REDOIL, with petitions being denied or claims being dismissed18)See e.g., Humane Society of the U.S. v. McCarthy, 209 F.Supp.3d 280 (D.D.C.2016); Envt’l Integrity Project v. EPA, 160 F. Supp. 3d 50 (D.D.C. 2015).. Environ- mentalists have, however, seen some success. In Sierra Club v. EPA, environmentalists challenged the EPA’s issuance of a permit which complied with outdated emission standards that were in effect when the permit application was filed19)762 F. 3d 971, 974–976 (9th Cir. 2014).. The Ninth Circuit found for the Sierra Club, holding that the CAA “clearly requires the EPA to apply the regulations in effect at the time of the permitting decision”20)Ibid 979..
Claims concerning the Endangered Species Act (ESA) and climate change have generally involved challenges to federal agency decisions regarding the listing and conservation of threatened and endangered species. In Alaska Oil & Gas Ass’n v. Jewell, for example, the Ninth Circuit held that the Fish and Wildlife Service’s designation of a critical habitat for polar bears under the ESA was not arbitrary and capricious, despite the area being primarily an industrial staging area for oil and gas operations21)815 F.3d 544, 559 (9th Cir. 2014). See also Alaska Oil & Gas Ass’n v. Prizker, 2014 WL 3726121 (D. Alaska, July 25, 2014)..
More recently in the Arctic, the Center for Biological Diversity (CBD) gave notice of its intent to sue Hiltrop Alaska, LLC, a natural gas provider, for its violations of the CAA, ESA, and the Clean Water Act (CWA) in a case involving a ruptured pipeline which is uncontrolled and estimated to be leaking between 210,000 to 310,000 cubic feet of natural gas per day22)Center for Biological Diversity, Notice of violations for Hilcorp’s Pipeline Leak in the Cook Inlet (2017)..
Under NEPA, plaintiffs have challenged government approval of pipelines and other natural gas projects23)See e.g., Delaware Riverkeeper Network v. U.S. Army Corp. of Engineers, 869 F.3d 148 (3d Cir. 2017); Sierra Club v. Federal Energy Regulatory Commission, 827 F.3d 36 (D.D.C. 2016); In re Atlantic Coast Pipeline, LLC, No. CP15-554-000 (2017)., and several lawsuits have attempted to limit oil and gas development in the Arctic by targeting state and local government actions under state law24)See e.g., Foster v. Dept. of Ecology, 2015 WL 7721362, No. 14-2-25295-1 SEA (Wash. Sup. Ct. 2015); Sinnok v. Alaska, No. 3An-17 (Alaska Sup. Ct. 2017)..
Public nuisance legal theory has been used in attempts to hold companies responsible for their contributions to climate change. In American Electric Power Co. v. Connecticut, plaintiff states, cities, and NGOs sued electric power corporations which owned and operated fossil-fuel-fired power plants in twenty states, seeking abatement of the defendants’ ongoing contributions to global warming25)American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 424 (2011). . Plaintiffs argued that the defendants’ greenhouse gases constituted a public nuisance under federal law, and sought an injunction ordering the companies to lower their emissions26)Ibid.. The U.S. Supreme Court determined that any existing federal common law cause of action had been displaced by the CAA, which authorizes the EPA to regulate GHG emissions27)Ibid 426, 428..
One year later, the Ninth Circuit held that the Supreme Court’s decision in American Electric that the CAA displaces federal common law actions extends to cases where damages are sought28)American Elec. Power Co., Inc. v. Connecticut, 564 U.S. at 414, 426, 428 (“The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law (…) The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”).. In Native Village of Kivalina v. ExxonMobil Corp., the Alaskan coastal village of Kivalina brought an action for damages under the federal common law theory of public nuisance against multiple oil, energy, and utility companies, alleging that the companies’ massive greenhouse gas emissions had resulted in global warming, leading to severe erosion of the land where their city is located29)Native Village of Kivalina v. ExxonMobil Corp., 696 F. 3d 849 (9th Cir. 2012)..
Kivalina sought monetary damages for coastal flooding and alleged that the defendants knew that their operations were causing harm and conspired to keep it secret. The Ninth Circuit held that federal action by the EPA displaced the plaintiffs’ claims and dismissed on the grounds of the political question doctrine30)Ibid.. “The type of remedy asserted is not relevant to the applicability of the doctrine of displacement (…) if a cause of action is displaced, displacement is extended to all remedies”31)Ibid 857.. The Supreme Court declined to hear the case on appeal32)Cert. denied, 133 S. Ct. 2390 (2013)..
Despite the courts’ holdings in American Electric and Kivalina which preclude federal common law claims, parties have continued to bring suits under state common law. In 2017, several coastal municipalities in California filed lawsuits against more than three dozen fossil fuel corporations, claiming billions of dollars in property damage costs associated with climate change33)County of San Mateo v. Chevron Corp., No. 3:17-cv-04929-MEJ (N.D. Cal. 2017); People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. 2017); County of Santa Cruz v. Chevron Corp., No. 5:18-cv-00450 (N.D. Cal. 2017).. Plaintiffs allege that the companies’ greenhouse gas emissions contribute to global warming and melting of glaciers, which results in sea-level rise that worsens coastal flooding. The municipalities forecast significantly greater expenses to address beach erosion, property loss, and the need to retool infrastructure such as wastewater and runoff systems34)County of San Mateo v. Chevron Corp., No. 3:17-cv-04929-MEJ (N.D. Cal. 2017); People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. 2017); County of Santa Cruz v. Chevron Corp., No. 5:18-cv-00450 (N.D. Cal. 2017)..
As in Kivalina, plaintiffs allege that company officials knew, or should have known, about the climate impacts of their activities.

4. Use of the Public Trust Doctrine

The atmosphere is, like the seas, a critical resource which is common to all: this is the argument underpinning the atmospheric trust theory35)M. C. WOOD, You Can’t Negotiate with a Beetle: Environmental Law for a New Ecological Age, 2010, 50 Nat’l Resources J. 167.. Proponents argue that the government has a duty to curtail private appropriation of the atmosphere and its use as a dumping ground for carbon pollution and greenhouse gases. Unlike prior climate litigation brought under statutory or nuisance law aimed at isolated parts of the climate problem, atmospheric trust litigation focuses on the atmosphere as a single public trust asset in its entirety36)M. C. WOOD-C. W. WOODWARD, IV, Atmospheric Trust Litigation and the Constitutional Right to A Healthy Climate System: Judicial Recognition at Last, 2016, 6 Wash. J. Envtl. L. & Pol’y 633, 644..
Several cases have been filed under this theory37)See e.g., Juliana v. United States, No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146; Filippone ex rel. Filippone v. Iowa Dep’t Nat. Resources, 829 N.W. 2d 589; Funk v. Wolf, 144 A. 3d 228 (Pa. App. 2016); Texas Commission Envt’l Quality v. Bonser-Lain, 438 S.W. 3d 887..
The plaintiffs in these cases have mostly been children, alleging that they and future generations will suffer the greatest injuries of climate change from the government’s failure to protect the common atmosEphere today.
Despite difficult barriers38)Most cases having been dismissed outright. See, e.g., Kanuk v Alaska, 335 P.3d 1088., some cases have achieved advances in the courts. In 2016 an Oregon District Court held in Juliana v. U.S. that minor plaintiffs had standing to bring the public trust claim and that the public trust can apply to the federal government39)Juliana v. United States, No. 6:15-cv-01517-TC, 2016 U.S. Dist. WL 6661146.. In March 2018, the Ninth Circuit upheld the District Court’s decision and ruled in favor of the plaintiffs, denying the Trump Administration’s attempt to squash [quash?] the suit40)Juliana v. United States, No. 17–71692 (9th Cir., March 7, 2018).. The case is expected to proceed to trial in the Oregon District Court in 201841)‘Ninth Circuit Rules in Favor of Youth Plaintiffs, Rejects Trumps’ Attempt to Evade Constitutional Climate Trial’ Our Children’s Trust (7 March 2018). «https://static1.squarespace.com/static/571d109b04426270152febe0/t/5aa03bc20d9297098aaa97bc/1520450498534/2018.03.07+Press+Release++Ninth+Circuit+Decision+on+Trump- Writ+of+Mandamus.pdf» accessed 7 March 2018..
As to the remedy courts can apply, a reviewing court may order a defendant agency to use existing state authority to regulate greenhouse gas emissions or explain why doing so is beyond their statutory authority or outweighed by other public policy concerns42)National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983).. However, a potential hurdle exists: state agencies may lack the authority necessary to manage atmospheric pollution under the CAA43)42 U.S.C.A. §§ 7401(b), 7521(a)(1) (Westlaw, 2017)..
Another theory of liability is for a failure to adapt to climate change. In Conservation Law Foundation v. ExxonMobil44)Case No. 1:16-cv-11950 (D. Mass 2016). plaintiffs allege that ExxonMobil petroleum products distribution and storage terminal is at risk to rising sea levels and storm surges of increasing frequency and magnitude.

5. Elsewhere in North America

We found no reported cases in Mexico as of May 2018. In Canada a dozen actions have gone forward. Several of them involve challenges to government actions or approvals. In Burgess v. Ontario Minister of Natural Resources and Forestry, Court File No. 16-1325 CP, at issue was liability for damages arising from the alleged failure to adapt to the changed climate and thereby to avoid flood damage. This is a class action suit seeking C$ 900 million in damages from the Ministry. Class members include “all [legal persons] that owned real property and or had an ownership interest in real property situated on the shoreline of the Muskoka Lakes who suffered damages as a result of high water levels, flooding, and/or floating ice in March or April 2016.” The allegations were that the Ministry had a duty to avert foreseeable flooding and it knew that the lakes had reached dangerously high levels recently but ha negligently allowed the lakes to flood destroying adjacent structures.
In Turp v. Minister of Justice and Attorney General of Canada, 2012 FC 893, plaintiffs challenged the Canadian Government’s withdrawal from the Kyoto Protocol. The application for judicial review of the government’s decision was dismissed.
Friends of the Earth brought an action against the Minister of the Environment and the Governor in Council (2009 FCA 297); it sought a declaration that the government had breached its duties under the Kyoto Protocol. The court ruled that the legislation is not justiciable. The court concluded that it had no role to play reviewing the reasonable- ness of the government’s response to Canada’s Kyoto commitments under the Kyoto Protocol Implementation Act, 2007 (KPIA). The Federal Court of Appeal affirmed the lower court’s decision. In 2010, The Supreme Court of Canada declined to accept the case.
A government panel approval of an oil sands mine was the target of Ecojustice et al’s challenge in Pembina Institute for Appropriate Development and Others v. Attorney General of Canada and Imperial Oil, [2008] FC 302. The Federal Court of Canada found legal errors in a government joint review panel’s environmental assessment of the project hold- ing that the panel failed to adequately support a conclusion that the project would cause only insignificant environmental harm. The matter was remitted back to the panel with the direction to provide a rationale for its conclusion regarding the effects of the Project’s greenhouse gas emissions.
The Attorney General of Canada was challenged regarding the government’s authority to approve Renewable Fuel Regulations in the Syncrude Canada Ltd. case [2016] FCA 160. The regulation at issue requires that two percent of the content of all its diesel fuels be renewable, even what a company produces fuel for its own diesels and equipment. The Court of Appeal rejected the plaintiff’s constitutional and administrative law arguments, concluding that the government’s premise is warranted and that, “[e]ven if there was a solid evidentiary foundation establishing a different scientific opinion (…) it would not detract from the (government) forming a different opinion on admittedly different evidence”.
Regular operational activities of government or businesses were the subjects of a handful of other Canadian cases.

6. International actions

Also, petitions or complaints have been filed with international tribunals or institutions45)This includes the Inter-American Commission on Human Rights..
Of interest to Focus North America: several petitions have been based on violations of human rights. A 2013 petition to the Inter-American Commission on Human Rights on behalf of the Arctic Athabaskan people has yet to be decided46)Petition Seeking Relief from Violations of the Rights of Arctic Athabascan Peo- ples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, Inter-Am. Comm’n H.R., 1 (2013).. The Arctic Athabascan Peoples depend on the Arctic climate for survival47)Ibid (explaining the history of the Athabaskan tribes).; they allege that due to global warming, the Arctic climate has changed drastically and has affected Athabascans’ lives, livelihoods, and culture48)Ibid.. They seek a declaratory judgment that Canada’s black carbon emissions violate the American Declaration49)The American Declaration guarantees the Athabaskan Peoples’ right to the benefits of culture, which plaintiffs allege is violated by black carbon emissions. ibid 58-60., and an established plan to help mitigate the effects of such emissions in the Arctic50)Ibid at 1..
There are developing theories under international law, some of which may prove to be promising but have not yet been employed in actual cases51)For example, the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention Concerning Indigenous and Tribal Peoples in Independent Countries; UN Framework Convention on Climate Change; UN Declaration on the Rights of Indigenous Peoples; UN Human Rights Council Resolutions on Climate Change and Human Rights; and American Declaration of the Rights and Duties of Man, are all international obligations relevant to climate change and the Arctic peoples which arguably contain potential causes of action.. For instance, the Convention Concerning Indigenous and Tribal Peoples in Independent Countries and the UN Declaration on the Rights of Indigenous Peoples may both provide causes of action for climate change effects in the Arctic, as they recognize indigenous peoples right to lands and resources traditionally occupied or used by indigenous communities52)International Labour Organization Indigenous and Tribal Peoples Convention art. 7, June 27, 1989; UNDRIP Article 3 states “[i]ndigenous peoples have the right to self-determination.” Article 8 states “[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” Article 10 states “[i]ndigenous peoples shall not be forcibly removed from their lands or territories.” Article 28 states that “[i]ndigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”..

7. Conclusion

North America is witnessing, mainly in the United States but also in Canada, the use of adversarial strategies to address failure to mitigate and liability for failure to adapt to climate change. The “movement” in this collection of cases faces many legal challenges both procedural and substantive. Victories so far have been few and limited. However, introducing a previously unrecognized societal injustice to the judiciary in many areas of the law historically has often been difficult, considered unreasonable, even absurd. Overtime, however, some of the arguments made and theories used in innovative litigation initiatives have begun to seem reasonable, if not compelling. Furthermore, claims, even when they fail, bring light to the great environmental and social threats of climate change in communities around America and the world. The volume of climate change litigation is expected to grow as the impacts from climate change do, and as science more accurately links the specific causes; and this causal linkage is becoming stronger53)In 2013, scientists linked 63 percent of cumulative worldwide greenhouse gas emissions from 1854 to 2010, to just 90 companies. See R. HEEDE, Tracing anthro- pogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 2014, Climate Change pp. 1854-2010.

Notes   [ + ]

1. AMAP, Snow, Water, Ice and Permafrost. Summary for Policy Makers, Arctic Monitoring and Assessment Programme (Norway 2017) 8; and see K. HOSSAIN, Invasive Species in the Arctic: Concerns, Regulations, and Governance in Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic (Yale University Press 2015).
2. Any citizen or NGO may make a submission to NAFTA concerning whether a party to the agreement is failing to effectively enforce its environmental laws. NAF- TANow.Org «http://www.naftanow.org/agreement/default_en.asp» accessed November 2017.
3. For a comprehensive inventory of actions throughout the world see ‘Sabin’ «http://climatecasechart.com/us-climate-change-litigation/»accessed 29 Jan. 2018
4. ‘Sabin’ «http://climatecasechart.com/search/» accessed 28 January 2018.
5. Sabin’ «http://climatecasechart.com/us-climate-change-litigation/»accessed 29 Jan. 2018.
6. Sabin, ibid., and see B. H. POWELL-J. YAM, Judicial Notice of Climate Change, A Symposium on Environmental Prosecutions in the Classroom: Evidentiary Issues in Environmental Prosecutions and Hearings. May 6-7, 2015, University of Calgary.
7. Comer v. Murphy Oil, 839 F.Supp.2d 849 (bringing claim under state tort law); Juliana v. United States; No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146 (bringing claim under the public trust doctrine); WildEarth Guardians v. Jewell, 738 F.3d 298 (D. Mont. 2013) (bringing claim under the National Environmental Policy Act (NEPA
8. See e.g., Petition for Change of Status of HFCs Under Clean Air Act Section 612 (Significant New Alternatives Policy) (2015).
9. See e.g., Indigenous Environmental Network v. U.S. Dept. of State, No. 4:17-cv-00029 (D. Mont. 2017).
10. See e.g., Clean Air Council v. United States, No. 2:17-cv-04977 (E.D. Pa. 2017) (seeking declaration that the U.S. government cannot rollback regulations that increase the frequency or intensity of climate change based on faulty science, as it violates the plaintiffs’ constitutional rights to a “life sustaining climate system.”).
11, 24. See e.g., Foster v. Dept. of Ecology, 2015 WL 7721362, No. 14-2-25295-1 SEA (Wash. Sup. Ct. 2015); Sinnok v. Alaska, No. 3An-17 (Alaska Sup. Ct. 2017).
12. See e.g., Bell v. Cheswick Generating Station, 734 F.3d 188, 196 (3d Cir. 2013) (holding CAA did not preempt residents’ state tort claims against power company for air pollution); Comer v. Murphy Oil, 839 F.Supp.2d 849, 865 (S.D. Miss. 2012), aff’d on other grounds, 718 F.3d 460 (5th Cir. 2013) (holding that the CAA preempted property owners’ state tort claims for emissions causing global warming).
13. See e.g., Juliana v. United States, No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146 (D. Or. Nov. 10, 2016); Filippone ex rel. Filippone v. Iowa Dep’t Nat. Resources, 829 N.W. 2d 589 (Iowa App. 2013); Funk v. Wolf, 144 A. 3d 228 (Pa. App.
14. 549 U.S. 497 (2007).
15. See e.g., Sierra Club v. EPA, 762 F. 3d 971, 974–976 (9th Cir. 2014); REDOIL v. U.S. EPA, 715 F.3d 1155 (9th Cir. 2013)
16. 716 F.3d 1155.
17. ibid 1164.
18. See e.g., Humane Society of the U.S. v. McCarthy, 209 F.Supp.3d 280 (D.D.C.2016); Envt’l Integrity Project v. EPA, 160 F. Supp. 3d 50 (D.D.C. 2015).
19. 762 F. 3d 971, 974–976 (9th Cir. 2014).
20. Ibid 979.
21. 815 F.3d 544, 559 (9th Cir. 2014). See also Alaska Oil & Gas Ass’n v. Prizker, 2014 WL 3726121 (D. Alaska, July 25, 2014).
22. Center for Biological Diversity, Notice of violations for Hilcorp’s Pipeline Leak in the Cook Inlet (2017).
23. See e.g., Delaware Riverkeeper Network v. U.S. Army Corp. of Engineers, 869 F.3d 148 (3d Cir. 2017); Sierra Club v. Federal Energy Regulatory Commission, 827 F.3d 36 (D.D.C. 2016); In re Atlantic Coast Pipeline, LLC, No. CP15-554-000 (2017).
25. American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 424 (2011).
26, 30, 48. Ibid.
27. Ibid 426, 428.
28. American Elec. Power Co., Inc. v. Connecticut, 564 U.S. at 414, 426, 428 (“The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law (…) The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”).
29. Native Village of Kivalina v. ExxonMobil Corp., 696 F. 3d 849 (9th Cir. 2012).
31. Ibid 857.
32. Cert. denied, 133 S. Ct. 2390 (2013).
33, 34. County of San Mateo v. Chevron Corp., No. 3:17-cv-04929-MEJ (N.D. Cal. 2017); People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. 2017); County of Santa Cruz v. Chevron Corp., No. 5:18-cv-00450 (N.D. Cal. 2017).
35. M. C. WOOD, You Can’t Negotiate with a Beetle: Environmental Law for a New Ecological Age, 2010, 50 Nat’l Resources J. 167.
36. M. C. WOOD-C. W. WOODWARD, IV, Atmospheric Trust Litigation and the Constitutional Right to A Healthy Climate System: Judicial Recognition at Last, 2016, 6 Wash. J. Envtl. L. & Pol’y 633, 644.
37. See e.g., Juliana v. United States, No. 6:15–cv–01517–TC, 2016 U.S. Dist. WL 6661146; Filippone ex rel. Filippone v. Iowa Dep’t Nat. Resources, 829 N.W. 2d 589; Funk v. Wolf, 144 A. 3d 228 (Pa. App. 2016); Texas Commission Envt’l Quality v. Bonser-Lain, 438 S.W. 3d 887.
38. Most cases having been dismissed outright. See, e.g., Kanuk v Alaska, 335 P.3d 1088.
39. Juliana v. United States, No. 6:15-cv-01517-TC, 2016 U.S. Dist. WL 6661146.
40. Juliana v. United States, No. 17–71692 (9th Cir., March 7, 2018).
41. ‘Ninth Circuit Rules in Favor of Youth Plaintiffs, Rejects Trumps’ Attempt to Evade Constitutional Climate Trial’ Our Children’s Trust (7 March 2018). «https://static1.squarespace.com/static/571d109b04426270152febe0/t/5aa03bc20d9297098aaa97bc/1520450498534/2018.03.07+Press+Release++Ninth+Circuit+Decision+on+Trump- Writ+of+Mandamus.pdf» accessed 7 March 2018.
42. National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983).
43. 42 U.S.C.A. §§ 7401(b), 7521(a)(1) (Westlaw, 2017).
44. Case No. 1:16-cv-11950 (D. Mass 2016).
45. This includes the Inter-American Commission on Human Rights.
46. Petition Seeking Relief from Violations of the Rights of Arctic Athabascan Peo- ples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, Inter-Am. Comm’n H.R., 1 (2013).
47. Ibid (explaining the history of the Athabaskan tribes).
49. The American Declaration guarantees the Athabaskan Peoples’ right to the benefits of culture, which plaintiffs allege is violated by black carbon emissions. ibid 58-60.
50. Ibid at 1.
51. For example, the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention Concerning Indigenous and Tribal Peoples in Independent Countries; UN Framework Convention on Climate Change; UN Declaration on the Rights of Indigenous Peoples; UN Human Rights Council Resolutions on Climate Change and Human Rights; and American Declaration of the Rights and Duties of Man, are all international obligations relevant to climate change and the Arctic peoples which arguably contain potential causes of action.
52. International Labour Organization Indigenous and Tribal Peoples Convention art. 7, June 27, 1989; UNDRIP Article 3 states “[i]ndigenous peoples have the right to self-determination.” Article 8 states “[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” Article 10 states “[i]ndigenous peoples shall not be forcibly removed from their lands or territories.” Article 28 states that “[i]ndigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”.
53. In 2013, scientists linked 63 percent of cumulative worldwide greenhouse gas emissions from 1854 to 2010, to just 90 companies. See R. HEEDE, Tracing anthro- pogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 2014, Climate Change pp. 1854-2010.

Leave a Reply

Your email address will not be published.