Download The Climate Change Tort Suits

2010
American Public Power Association
Climate Webinar
June 14, 2010
Norman W. Fichthorn
Joe Stanko
Bill Wehrum
Cindy Langworthy
Bill Brownell
Allison Wood
Hunton & Williams LLP
2010
Update on EPA’s Greenhouse Gas
Rulemakings
American Public Power Association
Webinar
June 14, 2010
Norman W. Fichthorn
Hunton & Williams LLP
CAA Regulation – Background
 1999: Groups petition EPA for rulemaking on
GHG emissions from new motor vehicles
 2003: EPA denies petition; determines it lacks
GHG regulatory authority under CAA
 Litigation on 2003 action: Court of Appeals’
2005 decision and Supreme Court’s 2007
decision in Massachusetts v. EPA
3
CAA Regulation – Massachusetts v. EPA
 In 2007, Supreme Court rules that:
– EPA has authority to regulate – Carbon dioxide and
other GHGs are “air pollutants” under CAA
– As articulated in its 2003 decision, EPA’s policy
reasons for declining to regulate are inadequate
– Regulation not mandatory, but EPA response must
be consistent with CAA “endangerment” provision
4
CAA Regulation – EPA’s Response
 2008: EPA’s Advance Notice of Proposed
Rulemaking (ANPR) – Automobile GHG rules could
trigger economy-wide Prevention of Significant
Deterioration (PSD) regulation of GHG emissions
 April 2009: EPA moves toward regulation by
proposing “endangerment” finding for public comment
 May 2009: White House/California/automaker
negotiations result in “National Policy” on auto fuel
efficiency and GHG emission limits
5
CAA Regulation – Endangerment Finding
 Dec. 2009 – EPA issues final endangerment
finding as predicate to CAA auto regulation
 Finds 6 GHGs in the global atmosphere (CO2,
methane, nitrous oxide, HFCs, PFCs, SF6)
endanger public health and welfare in U.S.
 Finds GHG emissions from new vehicles in
U.S. “contribute” to the endangerment
6
CAA Regulation – Motor Vehicle Rules
 Sept. 2009 – EPA proposes GHG emission limits for
vehicles under CAA, in conjunction with similar DOT
fuel efficiency standards
 April 1, 2010 – Final vehicle GHG rules signed
 May 7, 2010 – Published in Federal Register
 Implications for stationary source regulation
– PSD Interpretive Memorandum rule (4/2/2010)
– “Tailoring” rule (6/3/2010)
7
CAA Regulation - PSD for GHGs
 April 2, 2010: EPA publishes final rule on
reconsideration of the PSD Interpretive Memorandum
– Air pollutant is covered by PSD program when the pollutant
becomes “subject to regulation” under Clean Air Act
– The air pollutant becomes “subject to regulation” only when
“subject to either a provision in the CAA or regulation
adopted by EPA under the CAA that requires actual control
of emissions of that pollutant”
8
PSD for GHGs (cont’d)
 PSD Interpretive Memorandum Rule (cont’d)
– PSD requirements apply to a newly regulated air
pollutant when “a regulatory requirement to
control emissions of that pollutant ‘takes effect’”
– EPA will allow no “grandfathering” of PSD permit
applications that are pending at the time GHGs
become subject to PSD on January 2, 2011
9
PSD for GHGs (cont’d)
 PSD Interpretive Memorandum Rule (cont’d)
– Title V will apply in a similar fashion
– EPA will implement these interpretations
immediately in areas subject to federal PSD rules
– EPA will allow these interpretations to be
implemented without the need for rule changes or
further SIP approval in SIP-approved states with
compatible regulatory language
10
PSD for GHGs (cont’d)
 What would it mean to regulate GHGs under the PSD
permit program, as EPA has “traditionally”
implemented the program?
– Statutory 100/250 tons-per-year major source thresholds
– Statutory default significance threshold of “zero”
– By EPA’s estimates:
– PSD applicability would increase from 300 to 41,000 permits/yr
– Title V applicability would increase from 14,000 to 6.1 million
11
PSD for GHGs – Tailoring Proposal
 October 2009: EPA proposes to temporarily “tailor”
the applicability of PSD and Title V to GHGs.
– Proposed PSD/Title V major source thresholds of 25,000 tpy
CO2e
– Proposed PSD significance threshold of 10,000 to 25,000
tpy CO2e
– Grounded in “absurd results” and “administrative necessity”
– Would apply directly in areas subject to federal control and in
SIP-approved states based on retroactive SIP approvals
12
PSD/Title V Tailoring Proposal (cont’d)
– Strong reaction from Congress, States and
permitting authorities
– EPA underestimated number of permits required and
corresponding administrative burdens
– Feb./Mar. 2010: Administrator Jackson indicates
tentative EPA decision to raise GHG major source
threshold
13
Final PSD/Title V Tailoring Rule
– Issued May 13, 2010 and published June 3, 2010
– Codifies PSD Interpretive Memorandum Rule, “subject to
regulation,” and PSD applicability dates
– PSD applies as of Jan. 2, 2011
– Treats all 6 GHGs as a single pollutant
– Focus nearly exclusively on impacts on smaller sources, state
and local permitting authorities
– Assumes large sources will be subject to PSD for GHGs
– Major issue for sources is Best Available Control Technology
(“BACT”)
14
Final PSD/Title V Tailoring Rule (cont’d)
 Phase 1:
– Jan. 2, 2011 through June 30, 2011
– Only a source that, when newly constructed or modified, will
emit at least 75,000 tons/year CO2e and that would trigger
PSD or Title V (or is an existing major source) for a non-GHG
pollutant would be subject to PSD and Title V for GHGs
– Intended to cover largest “anyway” PSD sources, e.g., EGUs
15
Final PSD/Title V Tailoring Rule (cont’d)
 Phase 2:
– July 1, 2011 to June 30, 2013
– PSD and Title V apply to new GHG sources
– For new construction, source must emit at least 100,000 tons/yr
CO2e
– For modifications at any existing major facility, GHG emissions
must increase by at least 75,000 tons/yr CO2e to trigger PSD for
GHGs
– For Title V, sources must emit at least 100,000 tons/yr CO2e
16
Final PSD/Title V Tailoring Rule (cont’d)
 Phase 3:
– EPA will issue supplemental notice of proposed
rulemaking in 2011 -- to conclude no later than July
1, 2012 -- to explore phasing in smaller sources,
beginning July 1, 2013
– An “enforceable commitment”
– Rulemaking “may discuss whether certain smaller
sources can be permanently excluded from
permitting”
17
Final PSD/Title V Tailoring Rule (cont’d)
 Phase 3 (cont’d):
– EPA will look at streamlining options to reduce permitting
burden on smaller sources
– E.g., special definition of “potential to emit” (“PTE”) for various
sources, presumptive BACT, general permits/permits by rule
– No permitting requirements for sources below 50,000 tons/yr
CO2e before April 30, 2016
– Including modifications with net increases below 50,000 tons/yr
18
Final PSD/Title V Tailoring Rule (cont’d)
 Other Issues:
– By April 30, 2015, EPA is to complete a study on remaining
GHG permitting burdens on smaller sources
– Another “enforceable commitment”
– Based on study, EPA will complete a rule by April 30, 2016 to
address smaller sources if necessary but may permanently
exclude them
– Emissions measured in short tons, not (as in GHG Reporting
Rule) metric tons
19
Final PSD/Title V Tailoring Rule (cont’d)
 Other Issues (cont’d):
– EPA to issue by end of 2010 supporting guidance to assist
permitting authorities, including guidance on BACT requirements
– Guidance would first cover source categories that emit GHGs at levels
exceeding the regulatory thresholds
– No grandfathering, but:
– Final permits issued before Jan. 2, 2011 are not reopened even if
construction begins after that date, nor does construction continuing
after that date require PSD for GHGs.
– Sources that are not subject to PSD until Phase 2 do not need GHG
permits to continue construction begun before July 1, 2011, but would
need a permit if construction begins after that date
20
Final PSD/Title V Tailoring Rule (cont’d)
 Other Issues (cont’d)
 “Initial screen” based on statutory mass thresholds:
– PSD/Title V only apply where PTE in GHGs exceeds both
regulatory threshold in CO2e and statutory threshold on mass
basis
– For modifications, a source must exceed regulatory threshold
on a CO2e basis and must also result in a net mass increase
of constituent gases combined
 Current rules on fugitive emissions continue to apply
21
Final PSD/Title V Tailoring Rule (cont’d)
 Asserted Legal Bases:
– “Absurd results”
– “Administrative necessity”
– “One-step-at-a-time”
– CAA Section 301(a)(1) – EPA to prescribe such
regulations as are necessary to carry out functions
under the Act
22
Final PSD/Title V Tailoring Rule (cont’d)
 State Responsibilities
– EPA decides to define “subject to regulation” and
incorporates new thresholds within the definition
– EPA expects many state, local and tribal area
programs with identical or similar “open-ended”
programs to immediately implement EPA approach
without rule or statutory change simply by
interpreting “subject to regulation” for PSD/Title V
applicability in the same way EPA does in this rule
23
Final PSD/Title V Tailoring Rule (cont’d)
 State Responsibilities (cont’d)
– EPA asks permitting authorities to notify EPA by Aug. 2, 2010
of their intentions with regard to implementing Tailoring Rule
for PSD and Title V (e.g., interpretation, rulemaking,
legislation)
– If state cannot act by Jan. 2, 2011, EPA will then act to
“narrow” federal approval of state program before that date
– Where states do not have authority to issue permits, EPA may
do so directly
– States still can use lower thresholds if they prove adequate
permitting resources to do so
24
Final PSD/Title V Tailoring Rule (cont’d)
 Title V Issues
– Phase 1 75,000 ton threshold doesn’t apply
– “Anyway” Title V sources must apply any Title V requirements
to GHG emissions
– If a permit is pending, it must be supplemented
– New sources (beginning July 1, 2011) generally have one
year to apply
– EPA will consider the issue of applicability of Title V to GHG
sources without applicable requirements (“empty permits”) in
future steps
25
Final PSD/Title V Tailoring Rule (cont’d)
 Title V Issues (cont’d)
– Fees:
– EPA does not amend Title V fee regulations, require
formal fee adequacy demonstration at this time, or require
change in presumptive minimum fee
– Authorities should review resource needs and raise fees if
needed
– EPA will monitor impacts, conduct fee audits
26
CAA Regulation – Litigation
 Pending legal challenges to all four rules, as well as
administrative petitions for reconsideration filed with
EPA
 Similar alignments with petitioner states, business
groups and companies vs. states and environmental
organizations supporting EPA
 Consolidation of cases?
 Motions to stay rules?
 Motions to hold litigation in abeyance?
27
CAA Regulation – Litigation (cont’d)
 Pending challenges to endangerment finding
 Filed against EPA by 3 states (Texas, Virginia,
Alabama), numerous business groups and
companies, public interest groups; intervenors
opposing EPA include 14 additional states
 18 states, several environmental groups filed motions
to intervene in support of EPA
 Consolidated; EPA has moved for abeyance
28
29
CAA Regulation – Litigation (cont’d)
 Vehicle Rule: cases already filed on vehicle rule from
some of the same petitioners
– More are likely by July 6, 2010 deadline
 States, auto manufacturer associations, and
environmental groups move to intervene to defend
rule
– But Alliance of Automobile Manufacturers leaves open
possibility of supporting relief for stationary sources
30
CAA Regulation – Litigation (cont’d)

PSD Interpretive Rule challenged
– Many of the same petitioners, including joint filing by 8 States (TX, AL, SC,
SD, NE, ND, VA, MS)
– One environmental group (Center for Biological Diversity) also filed a
challenge
– Intervention motions likely on both sides

Petition for administrative reconsideration and stay filed by Utility Air
Regulatory Group
– Date of Applicability: January 2, 2011
– No “Grandfathering” Provision

Tailoring Rule likely to face many similar challenges by August 2, 2010
– Two petitions for review already filed
31
CAA Regulation – What’s Down the Road?
 New source performance standards – and
existing-source standards – for electric
generators and other major industries
 National ambient air quality standards?
– Dec. 2009 petition to EPA by CBD and 350.org
– Problems with this approach, and EPA’s reaction
 What – if anything – will Congress do?
32
2010
Legislative Overview:
Carper-Alexander 3P Bill
American Public Power Association
Webinar
June 14, 2010
Joe Stanko
Hunton & Williams LLP
2010
The Climate Change Work Group
American Public Power Association
Webinar
June 14, 2010
Bill Wehrum
Hunton & Williams LLP
The “Climate Change Work Group”

Created by EPA in October 2009 under the auspices of the
Clean Air Act Advisory Committee – Permits, New Source
Review, and Toxics Subcommittee

“The charge to the Climate Change (CC) Work Group is to
discuss and identify the major issues and potential barriers to
implementing the PSD Program under the CAA for greenhouse
gases. The Work Group should focus on the BACT requirement,
including information and guidance that would be useful for EPA
to provide concerning the technical, economic, and
environmental performance characteristics of potential BACT
options. In addition, the Work Group should identify and discuss
approaches to enable state and local permitting authorities to
apply the BACT criteria in a consistent, practical and efficient
manner.”
35
The “Climate Change Work Group” (cont’d)

Original Plan
– A draft interim (3-month) and draft final (6-month) written report is
to be delivered and deliberated upon by the CAAAC for
submission to the US EPA.
– The draft interim report should be completed on or before
December 31, 2009, be approximately ten pages (or less) and
identify technical, economic, environmental and other information
that would be useful to enable sources and permitting authorities
to implement BACT for GHGs.
– The draft final report is due on or before March 30, 2010, should
also be approximately ten pages (or less) and include
recommendations for EPA to address the issues and potential
barriers associated with the implementation of BACT for GHGs.
36
The “Climate Change Work Group” (cont’d)

Actual Outcomes
– Broad range of views and disagreement among members of Task
Force led to a different phasing of its work:
– Phase I: Apply BACT for GHGs in the same manner as
conventional pollutants?
– Phase II: Craft new approach for BACT for GHGs, even if
inconsistent with “traditional” BACT?
– Interim Phase I Report, issued January 25, 2010, discusses issues
related to BACT assuming current BACT principles apply.
– Phase II Report, to be issued by March 31, 2010, would address
“Work Group member proposals regarding possible alternative or
supplementary approaches to applying” PSD to GHG sources.
37
The “Climate Change Work Group” (cont’d)

Who is on the work group?
– The usual suspects, including representatives from:
– Industry
– State and Local Agencies
– NGOs

Why did EPA form this group?
– EPA reportedly already was working on a GHG BACT guidance
document before the work group was formed.
– The Agency likely hoped to achieve “stakeholder” consensus on
key issues to reduce possible controversy on their guidance.
38
Organization of the Phase I Effort
 The Work Group quickly divided into four issue groups, roughly
corresponding to the BACT determination process:
– Defining the Source
– Technical Feasibility
– Cost, Energy, and Environmental Factors
– Information and Data Needs
 The Interim Phase I Report discusses these four issues. There is
no consensus on any substantial point.
39
Interim Phase I Report
Defining the Source
 What is the source or unit to which the BACT analysis applies?
– Consensus: EPA should continue to require BACT for new
emissions units and existing units that undergo a physical or
operational change.
– Alternative non-consensus views:
– Look to non-emitting portions of the process and to
separate emissions units not undergoing a physical or
operational change.
– No expansion of BACT beyond new or changed
emissions units
40
Interim Phase I Report
Defining the Source (cont’d)

At what point do potentially available control options redefine a source?
– Consensus: Court and EAB decisions have used terms such as the
applicant’s “fundamental business purpose” and a project’s “basic
design.” EPA should address their meaning.
– Alternative non-consensus views:
– BACT cannot redefine or change the fundamental type of project
proposed by the applicant.
– BACT is limited only by the fundamental business purpose of the
facility (e.g., electricity production). “Basic design” reflects only
design choices essential to provide the product or service.
41
Interim Phase I Report
Technical Feasibility

Criteria for determining feasible control technologies
– “Technically feasible”: Consensus on 1990 Draft Manual approach; non-consensus
on role and value of commercial guarantees.
– “Demonstrated in practice”: Consensus on 1990 Draft Manual approach.
– Technology transfer: Consensus on 1990 Draft Manual approach.
– Innovative technology: General consensus; not much previous use.
– CCS: Consensus on broad principles; non-consensus on location issues, degree of
use, and similarity
– Efficiency: Consensus about potential relevance and difficulties of implementation;
non-consensus reflects “defining the source” disagreements
– Clean fuels: Consensus that EPA should provide guidance; non-consensus reflects
“defining the source” disagreements
42
Interim Phase I Report
Technical Feasibility (cont’d)


What should be considered in deciding if CCS is technically feasible?
– Consensus: The process for capturing CO2 must be evaluated, as well as
the ability to transport the CO2 and the availability of a suitable storage site.
– Nonconsensus: Location, degree of use, and similarity.
How to decide if an energy efficiency threshold is technically feasible for a
process?
– A factor in evaluating BACT alternatives.
– A BACT limitation in and of itself.
– Form of the limit? Degradation over time? Site characteristics (e.g.,
altitude).
– Emissions unit vs. other parts of the facility vs. off-site considerations.
43
Interim Phase I Report
Criteria for Eliminating Technologies

Environmental Impacts
– Consensus:
– Consider impact of GHG controls on conventional pollutant
emissions and NAAQS compliance and optimize emission
reductions
– Other environmental factors should be considered (water;
solid waste; environmental justice; etc.)
– Non-consensus
– Whether a GHG BACT alternative can be set aside in “step 1”
when that alternative would increase criteria pollutant
emissions.
44
Interim Phase I Report
Criteria for Eliminating Technologies (cont’d)
 Energy Impacts
– Consensus:
– “[E]nergy efficiency measures are important. … ‘Where’ the
energy efficiency consideration take place (i.e., onsite
versus offsite) and ‘how’ (i.e., in the steps of the top-down
BACT process of BACT) are important questions.”
– Alternative non-consensus views:
– Use BACT process to “provide incentives” for energy
efficiency
– Streamline BACT process because process itself can
45
discourage efficiency projects.
Interim Phase I Report
Criteria for Eliminating Technologies (cont’d)
 Economic Impacts
– Consensus:
– Use CO2e as basis.
– $/ton removed will be much lower for GHGs than other
pollutants because of larger quantities
– Alternative non-consensus views:
– $3-$15/ton versus $30-$150/ton (CCS is driver)
– Other members want EPA to provide guidance on the
range of cost effectiveness values based on the status
of various technologies.
46
Interim Phase I Report
Needs of States and Stakeholders






This work group was led by the states—Mostly consensus on:
Timely communication of GHG BACT determinations and ready availability
of relevant information.
Guidance needed from EPA in key areas.
EPA should take steps to expedite the BACT process:
– Consensus: Use existing BACT process; develop guidance; inventory
of sources.
– Non-consensus: Presumptive BACT; whether EPA should be
encouraged to issue NSPSs for GHGs to help guide GHG BACT
determinations.
Netting: guidance needed
47
Extensive training is needed.
Interim Phase I Report
“Other Issues”
 Biomass
– Consensus: EPA should decide what policy and legal
consequences might flow from carbon neutrality
– Alternative non-consensus views:
– Biomass always carbon-neutral and should be excluded
from PSD
– Full life-cycle must be assessed on a case-by-case
basis to determine carbon neutrality
 Setting permit conditions based on future availability
– No area of consensus: unlawful?
48
Phase II Report
 On April 9, Gina McCarthy issued a letter responding to the
Phase I report:
– “actively working with states on technical information and
data needs”
– “developing sector based GHG control measures white
papers”
– “gearing up to respond to your questions on BACT policy
issues for GHGs”
– Move ahead with Phase II …
49
Phase II Report (cont’d)
 Scope of Phase II
– How can the BACT process be used to encourage the
development of energy efficient processes and technologies.
– How can the development and permitting of innovative
emissions reduction measures, including the promotion of
inherently efficient and lower emitting processes and
practices for GHGs, be encouraged? How can the
Innovative Technology waiver be used or changed to better
promote technology development and application?
 Report by July 16
50
2010
NO2 Air Quality Standards & Permitting
American Public Power Association
Webinar
June 14, 2010
Cindy Langworthy
Hunton & Williams LLP
NO2 Air Quality Standards & Permitting
 EPA adopted a new 1-hour National Ambient
Air Quality Standard (“NAAQS”) for nitrogen
dioxide (“NO2”)
– Limits the average 98th percentile daily maximum
1-hour NO2 to 100 parts per billion
 Has the potential to interfere with permitting
new natural gas plants
52
NO2 Air Quality Standards & Permitting (cont’d)
 As of April 12, 2010, all PSD permit
applications must address this NO2 NAAQS
– No exemption for applications completed before
that date
– No exemption based on insignificant impact of
permitted project
53
NO2 Air Quality Standards & Permitting (cont’d)
 Must show by modeling that the permitted
project and nearby sources will not cause or
contribute to a violation of the 1-hour NAAQS
 EPA’s preferred model for PSD modeling –
AERMOD – is overly conservative
– Predicts NAAQS violations that evidence suggests
are not real
54
Illustrative Modeling Study
Typical natural gas-fired combustion
turbine plant

–
4 approaches to conversion of NOx to NO2
–
–
–
–
–
100% NOx/NO2 conversion at all distances
75% conversion at all distances
Ozone-Limiting Method
Plume Volume Molar Ratio Method
2 approaches to background NO2
– Uniform or hourly
55
Natural Gas-Fired Plant Layout
Peak 1-hr
impact
56
Modeling Results for Gas-Fired Power Plant
Modeled Concentrations (mg/m3)
Max Receptor
Source
Only
Background
Source +
Background
NAAQS
(mg/m3)
x
y
Using a single NO2 background value
100% Conversion; Default Method
75% Conversion; Default Method
571.90
428.93
88.62
88.62
660.52
517.55
188.1
188.1
419.24
419.24
-2.44
-2.44
OLM Method using 10% In-Stack Ratio
186.71
88.62
275.33
188.1
419.24
-2.44
OLM Method using 5% In-Stack Ratio
165.44
88.62
254.06
188.1
255.80
361.12
OLM Method using 1% In-Stack Ratio
155.04
88.62
243.66
188.1
205.80
361.12
PVMRM Method using 10% In-Stack Ratio
203.41
88.62
292.03
188.1
419.24
-2.44
PVMRM Method using 5% In-Stack Ratio
PVMRM Method using 1% In-Stack Ratio
177.72
157.06
88.62
88.62
266.34
245.68
188.1
188.1
419.24
419.24
-2.44
-2.44
AERMOD NO2 Modeling Method
57
Modeling Results for Gas-Fired Power Plant
Modeled Concentrations (mg/m3)
Max Receptor
Source
Only
Background
Source +
Background
NAAQS
(mg/m3)
x
y
100% Conversion; Default Method
576.05
35.93
611.98
188.1
419.24
-2.44
75% Conversion; Default Method
436.73
30.85
467.58
188.1
419.24
-2.44
OLM Method using 10% In-Stack Ratio
178.85
49.36
228.21
188.1
419.24
-2.44
OLM Method using 5% In-Stack Ratio
160.27
53.05
213.32
188.1
255.80
361.12
OLM Method using 1% In-Stack Ratio
149.87
53.58
203.45
188.1
255.80
361.12
PVMRM Method using 10% In-Stack Ratio
206.77
37.95
244.72
188.1
419.24
-2.44
PVMRM Method using 5% In-Stack Ratio
168.58
51.03
219.61
188.1
419.24
-2.44
PVMRM Method using 1% In-Stack Ratio
154.41
44.62
199.03
188.1
419.24
-2.44
AERMOD NO2 Modeling Method
Using hourly NO2 background data
58
Gas Plant Permitting Considerations
 Highest impact is attributable to emergency diesel
generators
– Worst impacts at fence line during the night
– Operating generators only at night might reduce modeled
impact
 Lowest impacts with Plume Volume Molar Ratio
 Hourly NO2 background reduces impacts
 EPA issuance of Significant Impact Level may help by
limiting modeling requirements
59
2010
Proposed CEQ Guidance on Consideration of
Climate Change in EIS / EAs
American Public Power Association
Webinar
June 14, 2010
Bill Brownell
Hunton & Williams LLP
Proposed CEQ Guidance on
Consideration of Climate Change in
EIS/EAs
Starting point: “It is now well-established that
rising GHG emissions are significantly affecting
the earth’s climate.”
61
Proposed CEQ Guidance on
Consideration of Climate Change in
EIS/EAs (cont’d)
Guidance:
 25,000 tpy of CO2 emissions is “a useful
presumptive threshold for discussion and
disclosure of GHG emissions.”
62
Proposed CEQ Guidance on
Consideration of Climate Change in
EIS/EAs (cont’d)
 Mitigation: “When a proposed action meets an
applicable threshold for quantification and
reporting … the [action] agency should also
consider mitigation measures and reasonable
alternatives” to mitigate GHG emissions
Comments due May 24, 2010
63
Endangered Species Act and Climate
Change
Consideration of “climate-dependent” species for
listing
Consequences of listing:
 Prohibition of “take”
 “Consultation” on federal actions
64
Endangered Species Act and Climate
Change (cont’d)
Climate change and “causation” (polar bear
listing):
“The best scientific information available has not
yet established a causal connection between
specific sources and locations of emissions and
specific impacts to polar bears or their habitat.”
65
2010
Katrina to Kivalina: Climate Change Nuisance
Litigation
American Public Power Association
Webinar
June 14, 2010
Allison Wood
Hunton & Williams LLP
Climate Change Nuisance Suits
 Connecticut v. American Electric Power
– Filed June 2004
 Comer v. Murphy Oil USA Co.
– Filed September 2005
– Climate change nuisance allegations added in April 2006
 California v. General Motors
– Filed September 2006
 Native Village of Kivalina v. ExxonMobil
– Filed February 2008
67
Nuisance?
 These suits all allege CO2 emissions from a variety of
business activities constitute a public and private
nuisance.
– Public nuisance = an unreasonable interference with a right
common to the general public
– Private nuisance = a nontrespassory invasion of another’s
interest in the private use and enjoyment of land
– Typical nuisance:
–
–
–
–
Hog farms
Explosives
“Bawdy houses”
Water pollution
68
The Climate Change Tort Suits:
2004 to Today
 June 2004: Connecticut, et al. v. American Electric Power Co., et
al., and Open Space Institute, Inc., et al. v. American Electric Power
Co., et al.
– Filed in the U.S. District Court for the Southern District of New York
–
–
–
–
against 5 electric utility companies
Lead case filed by 8 states (CT, NY, NJ, VT, RI, CA, WI, IA) and
New York City.
Second companion case filed by 3 land trust and environmental
groups.
Suits allege CO2 emissions from those 5 utilities’ electric generating
facilities constitute a public and private nuisance under federal
common law.
No monetary damages sought – injunctive relief of a cap on
defendants’ CO2 emissions and required reductions for at least a
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decade
The Climate Change Tort Suits:
2004 to Today
 September 2004: Defendants file motions to dismiss
– Suits circumvent and undermine policies set by Congress and
President to address climate change; violation of separation of
powers principles.
– No federal common law of nuisance
– Nuisance law is displaced by federal law.
– Congress and President have chosen to establish policy of
research and international negotiations
– No standing to bring suit
 February 2005: Briefing complete on motions to dismiss
 July 2005: Oral argument on motions to dismiss
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The Climate Change Tort Suits:
2004 to Today
 August 2005: Hurricane Katrina occurs
 September 20, 2005: Comer v. Murphy Oil, USA filed
in the U.S. District Court for the Southern District of
Mississippi
– The Hurricane Katrina case
– Asks for class action status
– Original complaint contains two classes of defendants:
– “Insurance Defendant Class”
– “Oil Company Defendant Class”
– Not a climate change or a nuisance case at this point
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The Climate Change Tort Suits:
2004 to Today
 September 22, 2005: U.S. District Court for the Southern District of
New York grants motions to dismiss in Connecticut v. AEP on
grounds that it raised non-justiciable political questions (political
question doctrine)
– Connecticut v. AEP, 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
– “Cases presenting political questions are consigned to the political
branches that are accountable to the People, not to the Judiciary, and
the Judiciary is without power to resolve them. This is one of those
cases.”
– Court rejected plaintiffs’ claim that this was “a simple nuisance claim of
the kind courts have adjudicated in the past,” finding that no previous
“pollution-as-public-nuisance” case “touched on so many areas of
national and international policy.”
 September 2005: Plaintiffs file appeal in the Second Circuit
 March 2006: Briefing complete in the Second Circuit
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The Climate Change Tort Suits:
2004 to Today
 April 2006: Plaintiffs file Third Amended Complaint in
Comer.
– Case now becomes a climate change nuisance suit
– “Oil Company Defendants” – 8 oil/refinery companies,
including American Petroleum Institute
– “Coal Company Defendants”
– 21 electric utility companies
– 10 coal companies
– “Chemical Company Defendants” – 3 chemical
manufacturing companies and the American Chemistry
Council
– Diversity jurisdiction not federal question – state law claims
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The Climate Change Tort Suits:
2004 to Today
 Third Amended Complaint in Comer (continued):
– Claims against all defendants in Comer:
– Defendants’ CO2 emissions have “substantially
increased in frequency and intensity of [sic] storms
known as hurricanes; effectively doubling the frequency
of category four and five hurricanes over the past thirty
years.”
– Defendants’ CO2 emissions are alleged to be a
proximate and direct cause of an increase in the
destructive capacity of Hurricane Katrina.
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The Climate Change Tort Suits:
2004 to Today
 Third Amended Complaint in Comer (continued):
– Causes of action against all defendants:
–
–
–
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Public and private nuisance
Trespass
Negligence
Fraudulent misrepresentation and concealment
– Plaintiffs also allege unjust enrichment and civil
conspiracy/aiding and abetting claims against Oil Company
Defendants.
– Monetary damages sought.
– Loss of property and loss of use and enjoyment of property
– Loss of business and/or income
– Clean-up expenses (past, present, future)
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The Climate Change Tort Suits:
2004 to Today
 Third Amended Complaint in Comer (continued):
– Damages sought (continued):
–
–
–
–
–
Disruption of the normal course of their lives
Loss of loved ones
Mental anguish and emotional distress
Personal injury
Litigation fees and court costs
– Also seek punitive damages from defendants “for their
conduct which amounts to willful indifference, extreme
recklessness, gross negligence and an illegal conspiracy to
prevent dissemination of scientific information regarding the
specific hazards created by Global Warming.”
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The Climate Change Tort Suits:
2004 to Today
 June 2006: Oral argument takes place in the Second Circuit in
Connecticut v. AEP
– Panel: Judges Sotomayor, Hall, McLaughlin
 September 2006: Motions To Dismiss filed by defendants in Comer

– Barred by the political question doctrine (cite Connecticut v. AEP)
– Plaintiffs lack standing
– Preemption
September 2006: California v. General Motors filed in the U.S. District Court
for the Northern District of California
– Filed September 2006 against six automobile manufacturers (GM,
Toyota, Ford, Honda, Daimler Chrysler, Nissan) by California Attorney
General
– Seeks monetary damages for creating and contributing to the public
nuisance of global warming.
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– Relates to California’s automobile emission standards for GHGs
The Climate Change Tort Suits:
2004 to Today

December 15, 2006: Automobile defendants file motions to dismiss in
California v. General Motors
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–
–
–

Political question doctrine
Standing
Preemption
Other defenses related to automobile industry
December 19, 2006: Plaintiffs in Comer v. Murphy Oil file a motion for
leave to file a Fourth Amended Complaint (right after they file
oppositions to motions to dismiss) and lodge proposed Fourth Amended
Complaint with court.
– Proposed Fourth Amended Complaint in Comer would add over 100
new defendants to case
– Changes basis of jurisdiction to federal question (federal common law)
– Adds strict liability claim
– Extends civil conspiracy claims to all defendants not just to oil
companies
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The Climate Change Tort Suits:
2004 to Today


January 2007: Briefing completed on motions to dismiss in Comer v.
Murphy Oil
January 2007: Defendants oppose motion to amend complaint in
Comer
– Defendants argue plaintiffs have not given any explanation of
undue delay in adding numerous new parties or for change in
jurisdictional basis
– Would require briefing to be repeated
– Defendants ask court to rule on pending motions to dismiss,
which, if granted on threshold jurisdictional issues, would
resolve case under either complaint.
 April 2, 2007: Supreme Court decides Massachusetts v. EPA
 April 2007: Briefing completed on motions to dismiss in California v.
General Motors
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The Climate Change Tort Suits:
2004 to Today
 June 2007: Parties in Connecticut v. AEP ordered to file
supplemental briefs on effect on case, if any, of Supreme Court’s
decision in Massachusetts v. EPA. Briefs filed in early July 2007.
 August 31, 2007: Oral argument in Comer v. Murphy Oil and
dismissal of case
– Judge Guirola rules from the bench following the oral argument,
granting the motions to dismiss on two grounds:
–
–
–
–
Case barred by the political question doctrine
Plaintiffs lack standing
Only a transcript, no published opinion
With regard to standing, Judge Guirola stated, “I do not think that under our
system of jurisprudence [global warming] is attributable or traceable to these
individual defendants but is instead . . . attributable to a larger group that are
not before this Court, not only within this nation but outside of our
jurisdictional boundaries as well.” (Transcript at 36)
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The Climate Change Tort Suits:
2004 to Today
 Dismissal of Comer (continued):
– With regard to the political question doctrine, Judge Guirola stated
that the debate over what to do to address global warming “is a
legitimate debate. It is an important debate, but it is a debate
which simply has no place in the Court, until such time as Congress
enacts legislation which sets appropriate standards by which this
Court can measure conduct, whether it be reasonable or
unreasonable. . . .” (Transcript at 39)
– Plaintiffs “are asking this Court to do . . . what Baker versus Carr
told me not to do, and that is to balance economic, environmental,
foreign policy, and national security interest[s] and make an initial
policy determination of a kind which is clearly nonjudicial.
Adjudication of the plaintiffs’ claims in this case would necessitate
the formulation of standards dictating, for example, the amount of
greenhouse gas emissions that would be excessive and the
scientific and policy reasons behind those standards.” (Transcript
at 40)
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The Climate Change Tort Suits:
2004 to Today
 September 2007: Plaintiffs appeal Comer to the Fifth
Circuit.
 September 17, 2007: Judge Jenkins grants the
motions to dismiss in California v. General Motors (no
oral argument)
– California v. General Motors Corp., No. C06-05755 MJJ,
2007 WL 2726871 (N.D. Cal. Sept. 17, 2007). Case found to
be barred on the basis of the political question doctrine.
– Cited Connecticut v. AEP decision
– Court found that resolution of claim would require it to make
initial policy determinations regarding how to address climate
change, which is properly province of political branches.
– Court also found claims implicated political branches’ powers
over interstate commerce and foreign policy.
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The Climate Change Tort Suits:
2004 to Today
 October 2007: California v. General Motors
appealed to the Ninth Circuit
 January 2008: Briefing complete in Comer v.
Murphy Oil in Fifth Circuit
 February 2008: Native Village of Kivalina v.
ExxonMobil filed in the U.S. District Court for the
Northern District of California by City of Kivalina,
Alaska, and the Native Village of Kivalina, a
Native American Eskimo tribe
– Defendants are 23 energy companies: oil companies,
electric utilities, and one coal company
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The Climate Change Tort Suits:
2004 to Today
 Native Village of Kivalina Complaint (continued):
– Defendants’ emissions of greenhouse gases, mainly CO2,
are responsible for nuisance of global warming.
– Increased temperatures are alleged to have melted winter
sea ice adjacent to Village, leaving it more vulnerable to
storms and erosion
– Villagers seek costs of relocation ($95 to $400 million)
– Federal question jurisdiction – federal common law
– Four legal theories:
–
–
–
–
Public nuisance
Private nuisance
Civil conspiracy (against only 8 of the defendants)
Concert of action
84
The Climate Change Tort Suits:
2004 to Today
 May 2008: Briefing complete in California v.
General Motors
 June 2008: Defendants file motions to
dismiss in Native Village of Kivalina v.
ExxonMobil
– Political question doctrine
– Standing
– No federal common law of nuisance
– Displacement of federal common law
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The Climate Change Tort Suits:
2004 to Today
 August 6, 2008: Comer argued in Fifth Circuit
– Only two judges on panel (Judge Garza and Judge Dennis).
Third judge (Judge Minaldi sitting by designation) had death
in family and could not be present.
– Two weeks later, learned one judge had recused from the
case and would need to be reargued.
 November 3, 2008: Comer reargued in Fifth Circuit
– Panel: Judges Davis, Dennis, and Stewart
 November 2008: Briefing complete on motions to
dismiss in Native Village of Kivalina (N.D. Cal.)
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The Climate Change Tort Suits:
2004 to Today
 March 10, 2009: California v. General Motors scheduled for oral
argument this day in Ninth Circuit; California seeks extension,
which is granted.
 May 8, 2009: California v. General Motors rescheduled for oral
argument this day. California seeks six month continuance of
case, which is granted.
 May 19, 2009: Native Village of Kivalina v. ExxonMobil
scheduled for oral argument in N.D. California. Court decides not
to hold argument days before hearing.
 June 19, 2009: California voluntarily dismisses appeal of
California v. General Motors – preserves precedent in N.D. Cal.
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The Climate Change Tort Suits:
2004 to Today
 September 21, 2009: Second Circuit finally rules on
case – over three years after oral argument
– Opinion by Judges Hall and McLaughlin (Justice Sotomayor
has joined the Supreme Court weeks before)
– Panel reverses the district court: Connecticut v. American
Electric Power, 583 F.3d 309 (2d Cir. 2009).
– Political question does not bar the case
– If plaintiffs were “ask[ing] the court to fashion a comprehensive
and far-reaching solution to global climate change . . . [that
would] arguably fall within the purview of the political
branches.”
– This case, however, “does not involve assessing and balancing
the kind of broad interests that a legislature or President might
consider in formulating a national emissions policy.”
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The Climate Change Tort Suits:
2004 to Today
 Second Circuit decision in Connecticut v. AEP (continued):
– Plaintiffs have standing to bring their claims.
– “The future injuries complained of . . . are already in process as
a result of the ongoing emissions by Defendants that contribute
to increasing temperatures.”
– “[A] plaintiff must merely show that a defendant discharges a
pollutant that . . . contributes to the kinds of injuries alleged.”
– A federal common law of nuisance exists.
– Allegations regarding the impacts of “global warming . . . suffice
to allege an ‘unreasonable interference’ with ‘public rights’
within the meaning of” the Restatement of Torts.
– While “[t]he Supreme Court . . . has not explicitly addressed
whether private parties may bring such a [public] nuisance
action” under federal common law, that right is implicit in a
footnote of an old Supreme Court decision (Milwaukee I).
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The Climate Change Tort Suits:
2004 to Today
 Second Circuit decision in Connecticut v. AEP (continued):
– Plaintiffs’ claims are not displaced at this time.
– “Until EPA completes the [CAA] rulemaking process, we cannot
speculate” about whether the CAA displaces federal common law.
 October 15, 2009: Judge Armstrong grants motions to dismiss
Native Village of Kivalina
– Native Village of Kivalina v. ExxonMobil, 663 F. Supp. 2d 863 (N.D.
Cal. 2009).
– Finds plaintiffs lack standing to bring their claims and that case is
barred by the political question doctrine.
– Expressly addresses Second Circuit’s decision in Connecticut and
rejects it’s reasoning: “This Court is not so sanguine.”
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The Climate Change Tort Suits:
2004 to Today
 District Court’s decision in Kivalina (continued):
– Political question doctrine:
– Plaintiffs ignore that their nuisance claim requires “the
factfinder… [to] balance the utility and benefit of the alleged
nuisance against the harm caused . . . and otherwise fail to
articulate any particular judicially discoverable or manageable
standards that would guide a factfinder in rendering a decision
that is principled, rational, and based up on reasoned
distinctions.”
– Standing:
– “[T]he pleadings make clear that there is no realistic possibility
of tracing any particular alleged effect of global warming to any
particular emissions by any specific person, entity, [or] group at
any particular point in time.”
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The Climate Change Tort Suits:
2004 to Today
 October 16, 2009: Fifth Circuit issues its opinion in Comer
v. Murphy Oil partially reversing the district court.
– Comer v. Murphy Oil, 585 F.3d 855 (5th Cir. 2009).
– Plaintiffs have standing to bring nuisance, trespass, and
negligence claims.
– “[D]efendants’ main contentions are similar to those recently
rejected by the Supreme Court in Massachusetts.”
– The “fairly traceable” standard requires only that defendants’
emissions “contribute to, rather than . . . materially cause . . . global
warming.”
– Plaintiffs lack standing to bring unjust enrichment, civil
conspiracy, and fraudulent misrepresentation claims.
– “The source of the plaintiffs’ second set of grievances is the alleged
failure of the government to properly regulate. . . . Such a
generalized grievance is better left to the representative branches.”
92
The Climate Change Tort Suits:
2004 to Today

Fifth Circuit’s opinion in Comer v. Murphy Oil (continued):
– Plaintiffs’ claims are not barred by the political question doctrine.
– “Because [plaintiffs’] … claims do not present any specific question that is
exclusively committed by law to the discretion of the legislative or executive
branch, we hold that they are justiciable.”
– “[I[f a party … is unable to identify a constitutional provision or federal law
that arguably commits a material issue … exclusively to a political branch …
the motion should be denied without applying the Baker formulations.”
– Judge Davis files concurrence – he would have dismissed based on
proximate cause.



November 2009: Plaintiffs file appeal of Native Village of Kivalina v.
ExxonMobil in Ninth Circuit.
November 5, 2009: Petition for panel rehearing and for rehearing en
banc filed in the Second Circuit in Connecticut
November 30, 2009: Petitions for rehearing en banc filed in the Fifth
Circuit in Comer v. Murphy Oil.
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The Climate Change Tort Suits:
2004 to Today
 December 2, 2009: Fifth Circuit directs plaintiffs to file a response
to the petition for rehearing en banc in Comer v. Murphy Oil USA.
 February 26, 2010: Fifth Circuit grants petition for rehearing en
banc in Comer v. Murphy Oil, __ F.3d __, 2010 WL 685796 (5th Cir.
Feb. 26, 2010).
– Nine judges (including three on original panel) to sit for rehearing en
banc (seven judges recused).
– Panel decision has been vacated.
– Oral argument week of May 24, 2010
 March 5, 2010: Second Circuit denies petition for rehearing and
petition for rehearing en banc. Petitions for a writ of certiorari to the
Supreme Court due in July.
 March 11, 2010: Plaintiffs file opening briefs in Ninth Circuit in
Native Village of Kivalina v. ExxonMobil; briefing likely to conclude in
September.
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The Climate Change Tort Suits:
2004 to Today
 March 31, 2010: Plaintiffs file brief for en
banc rehearing in Comer
 April 30, 2010: Defendants file briefs for en
banc rehearing in Comer
 April 30, 2010: Fifth Circuit issues letter in
Comer stating that “new circumstances
have arisen” and a judge has had to recuse
leaving the court without a quorum and
cancelling the oral argument.
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The Climate Change Tort Suits:
2004 to Today
 May 6, 2010: Fifth Circuit orders letter
briefs to be filed in Comer addressing
quorum issue (briefs filed on May 12 and
17)
 May 28, 2010: Fifth Circuit dismisses
appeal finding it has no quorum to hear the
case; effect is affirmance of district court
dismissal of the case.
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Final Observations on
Climate Change Nuisance Cases
 Every district court to address these types of cases has
dismissed the case based on the political question doctrine
– District court judges – who would be the person to actually
hear the case – recognize the fact that there are no judicially
manageable standards here to guide them and that they
would be, in effect, creating public policy on global warming.
 Two of the four district courts have also dismissed based on
standing.
 Two Courts of Appeals have found that the political question
doctrine does not bar the cases and that plaintiffs have
standing to bring these cases, but the Fifth Circuit’s decision
has been vacated and the appeal dismissed.
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Final Observations on
Climate Change Nuisance Cases
 Split in the Circuits?
 Even if these cases are reversed, this is only the
motion to dismiss stage.
 None of the courts, except the Second Circuit, have
ruled on the displacement of federal common law
issue, and even the Second Circuit acknowledged
that displacement was a possibility in the future.
 Preemption possibility: Members of Congress are
discussing preempting these types of suits in any
climate legislation, and Utah has already preempted
them.
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