Carbon Dioxide

New Mexico Court Refuses to Take Steps to Apply Public Trust Doctrine to the Atmosphere

August 22, 2013 06:13
by J. Wylie Donald
By J. Wylie Donald and Patrick Reilly Two years ago, we observed a potentially startling development in climate change litigation: “On Monday, May 4, [2011] in state courts across the nation lawyers representing children and young adults filed (and apparently will continue to file) suits seeking to compel State governments to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to abate those emissions.” These lawsuits were coordinated by two groups, Our Children’s Trust and Kids vs. Global Warming, and sought to apply the Public Trust Doctrine to the atmosphere. At the time, we pointed out that there were a host of issues to be resolved before these lawsuits could be successful. And so far, although the Public Trust Doctrine is now recognized in some jurisdictions as applying to the atmosphere, not one suit has been successfully concluded.  Recently, the New Mexico suit, although it survived a motion to dismiss, joined its unsuccessful brethren when the District Court granted a motion for summary judgment against the plaintiffs.  In the case, Sanders-Reed v. Martinez, seventeen-year-old Aklilah Sanders-Reed sued New Mexico and Susana Martinez in her official capacity as governor for breaching their duty to uphold the public trust with respect to greenhouse gas emissions into the atmosphere. Asserting that “courts have emphasized the flexibility of the [public trust] doctrine to meet changing societal concerns,” Sanders-Reed and her lawyers argued in their complaint that “Governor Martinez has failed to use her authority for the protection of the atmosphere, a valuable public trust resource that belongs to present and future generations of New Mexico citizens.” Plaintiffs effectively hoped that, by applying the Public Trust Doctrine to the atmosphere, the state judiciary could order stricter greenhouse gas regulations. In her June 26th, 2013 Order on Summary Judgment (attached), the Honorable Sarah M. Singleton noted the gravity of such a decision: “I think that in applying this Doctrine … the Supreme Court would allow the judicial branch to bypass the political process if there was an indication that the political process had gone astray.”  Citing an earlier case in Hawaii, Judge Singleton went on to conclude that, “the State may compromise public rights in the resource only when the decision is made with a level of openness, diligence, and foresight that is commensurate with the high priorities that the rights command under the laws of the state.” With these conclusions in mind, the Court opined that even if the Public Trust Doctrine does apply to the atmosphere, invoking it to protect the atmosphere would stand at odds with New Mexico’s record of doing so legislatively. The question is whether or not the State is ignoring its role in protecting the environment or the atmosphere. The State’s not ignoring it, it just disagrees with what the Plaintiff thinks is needed. So the State, in my opinion, has acted on this. Now, is there the possibility under the Public Trust Doctrine that the State’s action could be so wrongheaded as to invoke the Public Trust Doctrine? I  suppose that in rare circumstances, it could. But I believe that before a court should jump in to apply a doctrine like the Public Trust Doctrine, there should be some showing that the process was tainted or that the public was foreclosed from pursuing the issue. That is not the case here. Judge Singleton went on to explain that, by virtue of the state Environmental Impact Board’s public decision-making process, plaintiffs had not been denied their chance to participate in its findings on greenhouse gas emissions. She then asserted that regulation of greenhouse gas emissions is, “a political decision, not a Court decision,” before granting summary judgment.  With that decision, Sanders-Reed’s attempt to curtail New Mexico’s greenhouse gas emissions fell short at the trial court. But an appeal was filed on July 24th so it may not be over yet. (We note that Our Children’s Trust plaintiffs have a busy appellate docket.  Following losses at  the trial or intermediate appellate court, appeals are pending in Alaska, Oregon, and Washington also have pending appeals of litigation.  Losses on appeals in Arizona and Minnesota have not been further appealed.  They have appeals of regulatory petitions pending in Texas, Iowa, and Pennsylvania.) As stated in Arizona Center for Law in the Public Interest v. Hassell, and repeated earlier this spring in the Arizona OCT appeal, Butler v. Brewer, "as an attribute of federalism, each state must develop its own jurisprudence for the administration of the lands it holds in public trust."  Our Children’s Trust may have extended that rule to the “administration of the [atmospheric resources held] in public trust”, but so far that has had no effect.  20130704 Order on Summary Judgment (Sanders-Reed v. Martinez).pdf (410.72 kb)

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases

'Deferral Rule' is Derailed - Biogenic Greenhouse Gas Emitters Stand By to Be Regulated

July 19, 2013 06:27
by J. Wylie Donald
The greenhouse gas rule you’ve never heard of, the Deferral Rule, was shot down (barely) by the D.C. Circuit last week.  See Center for Biological Diversity v. Environmental Protection Agency, No. 11-1101 (D.C. Cir., July 12, 2013).   The opinion offers a wonderful primer on greenhouse gas rulemaking and describes the Timing Rule, the Tailpipe Rule and the Tailoring Rule.  It also explains in great detail numerous doctrines concerning agency rulemaking.  And it balances on the edge of a knife.  There is an opinion (Tatel, J.).  There is a concurring opinion (Kavanaugh, J.) that joins the opinion but goes even further, and which additionally states that “I believe, contrary to this Circuit’s precedent, that the PSD statute does not cover carbon dioxide.”  Opinion at 24.  And last, there is a detailed dissent (Henderson, J.) that addresses the arguments of the opinion to good effect.  If one is looking for definitive guidance this opinion will not suffice. Even without the Court’s decision, the rule would have died a year from now anyway.  The rule we are talking about is found at 76 Fed. Reg. 43,490, Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs.  To those less tied to formality, it is the Deferral Rule.  Under the Deferral Rule, EPA delayed for three years regulation as stationary sources under the Clean Air Act emitters of “biogenic”  carbon dioxide while it further assessed the subject.  Biogenic CO2, is biologically derived CO2, as opposed to CO2 derived from fossil fuels.  It includes emissions from burning landfill methane, combustion of municipal biologically derived solid waste, fermentation processes for ethanol manufacturing and the burning of biomass.  Biogenic CO2 is not discernably different in the atmosphere from that derived from fossil fuels.  Its difference lies in its context.  Biogenic CO2, when considered over time, may have a neutral or even reducing effect on total CO2 emissions because, for example, while the burning of biomass releases CO2, the growing of biomass pulls CO2 out of the atmosphere and sequesters it.  On the whole, facilities burning biomass might actually result in less CO2 emissions.  The purpose of the Deferral Rule was to permit EPA to spend some more time studying biogenic CO2 so as to avoid issuing regulations that accomplished little. In its rulemaking EPA offered three doctrines as justifications for its rule:  the de minimis, one-step-at-a-time, and administrative necessity doctrines.  The de minimis doctrine allows an administrative agency to grant regulatory exemptions ”when the burdens of regulation yield a gain of trivial or no value.”  Opinion at 13.  The one-step-at-a-time doctrine allows an agency to proceed in a “piecemeal fashion.”  Id.  And the administrative necessity doctrine allows an agency to “avoid implementing a statute by showing that attainment of the statutory objectives is impossible.” Id. at 15-16.  The absurd results rule, which EPA set forth in its brief, rejects the interpretation of a statute that would produce an absurd result.  Id. at 17.  The Court rejected all four theories.  The de minimis doctrine only applied to permanent exemptions, as the EPA conceded.  Id. at 13. Accordingly, it did not apply.  The dissent disagreed.  It saw the exception as available, particularly when the statute “expressly does not regulate “minor” sources that cause little harm because they release below-threshold levels of pollutants.”  Id. at 35. Application of the one-step-at-a-time doctrine was found to be arbitrary and capricious because EPA did not set out how it intended to achieve the statutory goal:  “We simply have no idea what EPA believes constitutes ‘full compliance’ with the statute.  In other words, the Deferral Rule is one step towards … what?  Without a clear answer to that question, EPA has no basis for invoking the one-step-at-a-time doctrine.”  Id. at 15.  The dissent was not buying:  “just as EPA proceeded gradually in regulating GHGs under the Tailoring Rule, EPA has delayed its regulation of a specific GHG via the Deferral Rule.  The fact that EPA is required to take action does not preclude it from phasing in the action using the step-at-a-time method.”  Id. at 33. The Court found fault with the administrative necessity theory because EPA did not explore what the Court referred to as the “middle-ground option,” requiring permitting except where the source took steps to reduce its biogenic CO2 emissions.  Because EPA had an “obligation to adopt the narrowest exemption possible, it should have explained why it rejected an option that would have reduced emissions from sources the Deferral Rule permanently exempts.”  Id. at 16-17.  Last, there was the absurd results rule, which EPA sought to apply “because ‘emissions of CO2 derived from certain forms of biomass may not only fail to endanger public health and welfare, but in fact may benefit the public by reducing the net emissions of CO2,’ …[and] it would run afoul of congressional intent to regulate them.” Id. at 17-18. The Court found, however, that EPA did not utilize this rule in its rulemaking, notwithstanding passing references.  Simply put, “[t]hese passing references [fell] far short of satisfying EPA’s ‘fundamental’ obligation to ‘set forth the reasons for its actions.’”  Id. at 18. The concurrence, as noted above, did not believe CO2 was even regulated by the statute.  But that had been previously decided to the contrary and “that’s water over the dam in this Court.”  Id. at 25.  As to the issue before him, that answer was easy:  “EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide.”  Id. at 21.  In sum, EPA was required to address emissions of CO2 and there was no part of the statute that allowed “EPA to exempt  … emissions of a covered air pollutant just because the effects of those sources’ emissions on the atmosphere might be offset in some other way.”  Id. at 22.  The last point raised by the dissent, in our view, sums up the entire case:  what was the point?  The dissent would have dismissed because the case was not ripe.  First, it needed to be fit for review.  The rule was temporary and by July 2014 EPA would either have let the rule expire or issued a new rule, one that the petitioners might like, but certainly one that would have been informed by the additional three years of research.  Id. at 38.  Second, deferring decision would work no real hardship to petitioners.  Only one facility had been identified as being able to avoid permitting as a result of the Deferral Rule.  The dissent pointed out that the facility enjoyed no more than the previous status quo:  “the hardship of which the petitioners complain is hyperbolically overblown.  The Deferral Rule does not deregulate scores of polluters.  Instead, it temporarily maintains the theretofore long-time status quo for a limited number of stationary sources that – until July 1, 2011 – had never been subject to regulation as a major source under PSD.”  Id. at 42. In our view, substantively, this decision accomplished little.  A rule that was going to expire next year, expires this year.  Parties seeking to rely on a decision by esteemed arbiters of the law find the arbiters completely at odds with one another.  But that may be the true significance of Center for Biological Diversity.  Notwithstanding that “the task of dealing with global warming is urgent and important at the national and international level,” id. at 25, consistency of approach is by no means assured in any arena, including the courts.

Carbon Dioxide | Carbon Emissions | Greenhouse Gases | Regulation

Top 6 at 6: Highlights of the Top Climate Change Stories in the First Half of 2013

June 30, 2013 21:01
by J. Wylie Donald
Another six months have passed and it is time for our semi-annual look at climate change and its intersection with the law.  Here are some highlights of the last six months: 1.  The Administration’s Focus.  After months of silence in the 2012 presidential campaign, President Obama rejuvenated his administration’s commitment to addressing climate change.  We heard in his inaugural address:   “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.”  He carried this forward in his State of the Union address less than a month later: “I urge this Congress to get together, pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago.  But if Congress won’t act soon to protect future generations, I will.  (Applause.)  I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”     And in a speech this past Tuesday the promises took another step toward reality when the President outlined his “climate action plan.”  Recognizing the logjam in Congress, the Administration's plan is based on authority the executive branch already has. The salient points include:  1) further restrictions on powerplant greenhouse gas emissions (notably addressing coal); 2) promotion of resilience and adaptation with respect to weather-related calamities; 3) additional permitting of renewable energy facilities on public lands; and 4) engagement in the international arena on climate change such as working out a global free trade agreement on clean energy technologies.   The goal is a reduction of U.S. greenhouse gas emissions by 17%.  The Wall Street Journal called these “sweeping climate policies.”  We will see; with no new authority, Gina McCarthy’s nomination to head EPA held up, and the bounty of natural gas unleashed by fracking, greenhouse gas reduction may be achieved by the market, see Leveraging Natural Gas to Reduce Greenhouse Gas Emissions,  not governmental efforts.   2. 400 PPM.  On May 9, Mauna Loa Observatory of NOAA’s Earth System Research Laboratory reported that the average weekly value of atmospheric carbon dioxide at the observatory had reached 400 ppm, a level unsurpassed in 3 million years.  The world collectively ignored the number, treating it more like an insignificant decimal, 0.0004, which it was (a decimal, not insignificant).  We don’t think anyone will dispute that there are three ways to interpret this number:  it’s bad, it’s good, it’s neither.  Climate scientists are unanimous that it’s bad.  There is nothing saying it’s good.  Which means the justification for not taking action on climate change is that the ever increasing levels, and the ever increasing rate of accumulation, of carbon dioxide in the atmosphere (see the graphs by the observatory), are of no consequence.  US Airways will probably side with the climate scientists - it canceled 18 flights as a result of the record-breaking temperatures in the southwest this past weekend.  As a footnote, we note that Mauna Loa’s number is an average, and is subject to refinement.  As it turned out, the 400 ppm number was refined a few weeks later to 399.89.   3.  Free Trade.  In 2009 Ontario enacted its Green Energy Act to promote renewable energy in the province.  One approach is the adoption of a feed-in tariff (mandatory above-market rates for electricity derived from renewable resources).  This had successfully been pioneered in Germany.  Ontario legislators also saw the opportunity to spur job growth by giving subsidies to businesses that sourced their wind turbines and solar panels in Ontario (i.e., “domestic content”). Japan jumped on this protectionism immediately and sought consultations with Canada under the General Agreement on Tariffs and Trade and the World Trade Organization. The consultations were ineffective and Japan requested a panel to hear the dispute concerning Ontario’s “domestic content requirements," with which renewable energy generators were required to comply "in the design and construction of electricity generation facilities in order to qualify for guaranteed prices” under the feed-in tariff program. Last December the panel ruled in favor of Japan on the domestic content requirements. Canada appealed and this May the appellate panel affirmed. Ontario's energy minister has confirmed that Ontario will abide by the WTO decision and revise its Green Energy Act.   We conclude that free trade remains colorblind. 4. Climate Change Liability Lawsuits.  For seven years now, the first wave of climate change liability lawsuits have roiled the legal waters.  It bears remembering that in October 2009, the plaintiffs in these cases rode the crest of the wave.  The Second Circuit had reversed the trial court’s dismissal in Connecticut v. American Electric Power (AEP), and the Fifth Circuit likewise overturned the Southern District of Mississippi’s dismissal of Comer v. Murphy Oil USA.  Plaintiffs had standing; the political question doctrine did not apply. Things have gone badly for the plaintiffs since.  All readers of this blog know of the Supreme Court’s decision in AEP, stifling the plaintiffs’ case under the doctrine of displacement.  This year two more decisions confirmed the Judicial Branch’s hostility to these claims.  Comer made it back to the Fifth Circuit, where dismissal was summarily affirmed on the doctrine of res judicata.  And the last of the original quadriga, Native Village of Kivalina v. ExxonMobil Corp., found its petition for certiorari denied in April,  thus leaving the Ninth Circuit’s affirmance of dismissal unchanged. The only reed left for the plaintiffs is the granting of a petition for certiorari in Comer, a prospect we deem unlikely, if only because the appeal would be based on a purely procedural question of little likelihood of being repeated and of little relevance to the larger climate change issues. 5.  Ursus Maritimus.  On March 1 the D.C. Circuit in In re Polar Bear Endangered Species Act Litigation  affirmed the district court’s dismissal of challenges to the Fish and Wildlife Service’s designation of the polar bear as threatened under the Endangered Species Act because “due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future.” The polar bear’s friends (environmental groups) sought to have the bear listed as “endangered.”  Ursus maritimus’s less-than-friends (the State of Alaska and hunting groups), urged that no listing was appropriate.  The standard in such reviews is relatively simple:  “Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking.”  The Court found that it was, holding specifically the the Listing Rule rests on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. See Listing Rule, 73 Fed. Reg. at 28,212. No part of this thesis is disputed and we find that FWS’s conclusion – that the polar bear is threatened within the meaning of the ESA – is reasonable and adequately supported by the record.” As arctic resource development progresses as the ice retreats, the polar bear's Endangered Species Act listing is sure to take on larger significance, both as a model for the preservation of other arctic species, and as a tool to block development. 6.  Compressed Natural Gas (CNG). On June 13 the Fifth Circuit affirmed the district court's decision in Association of Taxicab Operators USA v. City of Dallas. In the case the local taxicab organization challenged a city ordinance that allowed CNG-fueled taxicabs “head-of-the-line” privileges at Love Field in downtown Dallas. Plaintiff's theory was that section 209(a) of the Clean Air Act, which prohibits states and their political subdivisions from adopting emission standards for motor vehicles, preempted the ordinance either directly or by implication. The Fifth Circuit did not agree. Traditional police powers of the state were preserved to the state by section 209(d) of the Clean Air Act. More importantly, an ordinance granting head-of-the-line privileges, on its face did not set an emission standard, as required by the statute.  As to any implied preemption, the ordinance may have influenced taxicab operators to alter their behavior, but it did not compel them to do so. Less than 7% of Dallas's taxicabs served Love Field and the only place CNG cabs had head-of-the-line privileges was at Love Field; there were plenty of other places for gasoline powered cabs to pick up fares. Accordingly implied preemption did not apply either.  One of our themes in a world beset by climate change is that there will be winners and there will be losers. Little did taxicab operators know they would be both.

Carbon Dioxide | Carbon Emissions | Climate Change | Greenhouse Gases | Legislation | Regulation | Utilities | Year in Review

The Tar Sands Debate Comes to Delaware

June 25, 2013 08:49
by Jameson Tweedie
Across the country, environmental organizations have made the transport and processing of crude oil from the tar sands of Alberta, Canada a focal point in their efforts to reduce carbon emissions, citing higher carbon emissions of oil from the tar sands (although that assertion is disputed).  The proposed Keystone XL pipeline currently being reviewed by the State Department is perhaps the most visible example of this fight, with numerous environmental organizations lining up to oppose it (for example, the Sierra Club, the Natural Resources Defense Council, 350.org and others), with some advocating civil disobedience in their efforts to defeat the pipeline.  (Slightly less high profile is the Northern Gateway pipeline – which would transport crude from Alberta through British Colombia to the west coast for overseas export – now opposed by the government of British Columbia.)  While the Keystone XL debate may not directly impact Delaware, it appears the focus on tar sands crude, and the controversy that seems to follow it, has arrived in Delaware in what might otherwise have been considered an economic success story:  PBF Energy’s Delaware City Refinery. The Delaware City Refinery was shuttered in 2009, but after being purchased by PBF Energy in 2010 – reportedly after significant personal effort by Governor Jack Markell – the Refinery reopened bringing hundreds of jobs back to the state.  According to PBF, the Delaware City Refinery is “one of the largest and most complex refineries on the East Coast” and employs more than 400 full time employees.  (For comparison, the Delaware City and nearby Paulsboro, N.J. Refineries can process a combined total of 370,000 barrels per day; the Keystone XL pipeline would carry up to 830,000 barrels per day.)  The Refinery, however, has encountered a laundry list of headlines in recent months, including a violation notice from the Department of Natural Resources and Environmental Control (DNREC) for unauthorized releases of 527,000 pounds of sulfur dioxide, complaints from nearby residents after a separate incident with the Refinery’s pollution control system “sent dark smoke billowing from a stack at the plant,” and disputes about the significantly expanded rail car delivery of crude oil, including tar sands crude, to the Refinery.  The expansion of the Refinery’s rail yard in particular met with significant environmental opposition because of the use of Canadian tar sands crude to supply the Refinery, and the subsequent shipment by barge of such crude up the Delaware River to PBF’s nearby Paulsboro, New Jersey refinery.  The most recent disputes are over the facility’s air emissions permits.  One permit process, for the Refinery's Title V permit, included the expected, if unexpectedly high, profile:  Those in support, including a rally of hundreds of refinery workers and supporters before the public DNREC hearing; those in opposition, including an opposing rally by groups opposing the permit; and the DNREC hearing, moved into a larger venue to accommodate the unusually large crowd and reportedly attended by nearly 100 police officers.   The issue is pending before DNREC.  Following the roughly contemporaneous issuance of another permit (PDF), the Air Pollution Control permit for the Marine Vapor Recovery System at the Refinery, however, the Delaware Chapter of the Sierra Club and the Delaware Audubon Society filed challenges to DNREC’s permit with the state’s Environmental Appeals Board (PDF) and with the Coastal Zone Industrial Control Board (PDF) based in part on assertions that the permit violates Delaware’s Coastal Zone Act.  (The Sierra Club and Audubon Society are represented by the Widener University Environmental Law Clinic, which is also representing the Sierra Club in a currently pending appeal (PDF at 2) to the Delaware Supreme Court of another decision relating to interpretation of the Coastal Zone Act.) Delaware’s Coastal Zone Act (7 Del. C. sec. 7001, et. seq.) was signed into law in 1971 and, as its name suggests, prohibits certain land uses within a zone along Delaware’s coast.  The Act, however, grandfathered in certain activities already occurring within the coastal zone.  Of particular relevance to the Sierra Club’s and Audubon Society’s appeal is the Act’s prohibition on “offshore gas, liquid or solid bulk product transfer facilities” (except those grandfathered in as “nonconforming uses” already occurring in 1971).  See 7. Del. C. sec. 7003.  The appeal, in part, asserts that the Refinery’s expanded rail yard and barge shipment system is a bulk product transfer facility and therefore impermissible under the Coastal Zone Act.  Alternatively, if the operation is otherwise a grandfathered nonconforming use, the appeal asserts that the crude oil transfer is nonetheless impermissible due to the expansion of the refinery’s footprint outside of the permissible grandfathered footprint established in 1971.  The Coastal Zone Industrial Control Board has scheduled a public hearing on the appeal of the Marine Vapor Recovery System permit for July 16, 2013. Adding a slight flavor of intrigue to the dispute is a recent report by the Wilmington News Journal that DNREC issued the permit despite warnings to DNREC from the Delaware Attorney General’s Office that the permit may violate the Coastal Zone Act.  According to the News Journal’s report, “Gov. Jack Markell and top state environmental officials have apparently snubbed and suppressed a warning from state attorneys about possible regulatory violations at the Delaware City Refinery, opting instead to seek outside legal guidance on contested changes at the 210,000 barrel per day plant.”  The News Journal, citing unnamed state officials, reported that the Attorney General’s Office had provided DNREC with a memorandum providing a “detailed list of the refinery’s potential Coastal Zone Act conflicts,” apparently including the refinery’s expanded rail yard and the barge shipments to PBF's Paulsboro Refinery.    Regardless of the News Journal’s report, however, the dispute serves as a reminder of the nationwide stage on which the climate change debate, and by proxy the fight over Canadian tar sands crude, is now fought.     

Carbon Dioxide | Carbon Emissions | Climate Change

Fracking Zoning Case Seeks Review by New York's Highest Court

June 8, 2013 14:27
by J. Wylie Donald
Columbia Law School convened a panel on hydraulic fracturing ("fracking") yesterday. One of the subtopics was its effect on climate change mitigation. Professor Michael Gerrard laid out the pluses and minuses. On the plus side:  burning natural gas yields about one-half the amount of carbon dioxide as burning coal for the same amount of energy. This has been demonstrated by the 9% drop in United States CO2 emissions in the 5 years from 2007 to 2011.  Confirming Professor Gerard's statistics is a recent report by the Center for Climate Energy Solutions, Leveraging Natural Gas to Reduce Greenhouse Gas Emissions. On the minus side:  natural gas is composed in substantial part of methane, a much more potent greenhouse gas than carbon dioxide, and methane leakage occurs in the production, processing and distribution of natural gas; the low price of natural gas depresses the market for nuclear, solar, wind and other greenhouse-gas-free energy sources; and natural gas greenhouse gas emissions, while better than coal, are still greenhouse gas emissions.  Theoretically, one could assess scientifically this fracking algebra. But, as might be imagined, the future of fracking is not likely to be determined based on a balancing of pluses and minuses. Politics will be central and for the moment those politics are distinctly local.  Fracking's future in many places hinges on the ability of local zoning authorities to zone fracking out of the local community.  On Tuesday, the New York Court of Appeals was asked to join this fray, when fracking supporters filed a petition for review.  In the case, In re Norse Energy, a panel of the Appellate Division considered a local zoning ordinance that banned "all activities related to the exploration for, and the production or storage of, natural gas and petroleum." Petitioner Norse Energy argued the ordinance was preempted by the express terms of ECL 23-0303 of New York's Oil, Gas and Solution Mining Law, which provides that "[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law."  The panel concluded that this language was meant to address the details of mining, but did not reach the traditional power of a community over land use.  Accordingly, there was no express preemption.  The court further found that there was no implied preemption either. In our view, reasonable minds could differ.  But also in our view, the Appellate Division decision does not matter yet; it would have been appealed by whichever side lost.  The Court of Appeals, if it takes the case, will have to engage in statutory construction.  We cannot read the tea leaves there.  We hope, however, that the Court keeps the future in mind.   More than 170 municipalities in New York have enacted some sort of limitation on fracking within their borders.  The Oil, Gas and Solution Mining Law forbids activities that lead to "waste," defined to include:   "The locating, spacing, drilling, equipping, operating, or producing  of  any  oil  or  gas well or wells in a manner which causes or tends to  cause reduction in the quantity of oil  or  gas  ultimately  recoverable from  a  pool  under  prudent  and proper operations, or which causes or  tends to cause unnecessary or excessive surface loss or  destruction  of oil or gas."   A patchwork of municipalities with zoning ordinances barring fracking, will be physically juxtaposed with a patchwork of municipalities permitting fracking.  After some time, proponents undoubtedly will have the technical data to support the conclusion that "waste" is occurring and with those facts will return to seek enforcement of a statute forbidding regulation of the "locating ... of any oil or gas well" that causes "reduction in the quantity of oil or gas ultimately recoverable."  The Court should consider how its decision now will affect that future situation  (unless, of course, New York's legislature acts first).

Carbon Dioxide | Carbon Emissions | Regulation

Climate Change Legal Work: Changing the Paradigm Does Not Come Easily

May 8, 2013 05:18
by J. Wylie Donald
I learned the other day that for $3995 I can download nearly a 1000 page report on the climate change industry.  The Ah Hah moment was at hand.  The President’s promise at his inauguration and then again at the State of the Union was upon us.  Here it would be revealed what the small group of lawyers focused on climate change law were looking for:  where is the legal work?  But I am a cautious consumer.  The publisher anticipated my skepticism and offered the table of contents for my review for free.  I didn’t even have to give my email address.  It was an offer hard to turn down. The TOC was extensive.  Pages and pages chronicled the following industry segments:  Solar Energy, Wind Energy, BioEnergy, Geothermal Energy, Wave & Tidal, Carbon Capture & Storage, Energy Efficiency & Demand Response, Energy Storage, The Green Building Industry, Carbon Markets, Adaptation, Climate Change Consulting, and Transportation.  And under each of these segments one can find pages of company "profiles", presumably businesses with expertise in Wind Energy or Adaptation or Green Buildings.  Even lawyers were able to claim a niche.  Seven firms filled out “Law Firms and Climate Change Practices.” But as we all know, saying you’re doing something, and actually doing it, can be two entirely different things.  Here’s a different measure:  how many clients attend climate change legal seminars?  I have a bird’s eye view on this topic:  I gave one at the end of last month, Climate Change and Insurance:  Recent Litigation and Regulatory Developments.  The attendance was astounding:  2 insurance companies, 29 law firms (but including none of those "profiled" – maybe that should tell us something), and NO ONE ELSE.  Could it be that most insurers and all non-insurers have all the climate change related insurance issues already figured out?  Would they get 100% on this little quiz: What is the atmospheric public trust doctrine and how is it being used to address regulation of greenhouse gas emissions?Are there any decisions in support of finding that carbon dioxide is not a pollutant within the meaning of a pollution exclusion in a general liability policy?How do building height restrictions affect rebuilding after Superstorm Sandy?Do pollution exclusions negate coverage for improper climate change disclosures?Does a title policy insure against rising sea levels?Are insurers of last resort (wind pools, beach pools) increasing market share and what are the implications of that? Anecdotally, I know that most, if not all, would struggle merely to get a C.  But so what?  One can’t sell ice in the wintertime or neckties in a nudist colony.  As lawyers we provide a service to clients with the need for that service.  It is not what we want to sell, but rather what they want to buy.  And there is the secret.  Thomas Kuhn wrote a magnificent work explaining how scientific paradigms shift (think the change from a Ptolemaic universe (the sun revolves around the earth) to a Copernican one (the earth revolves around the sun)).  Presently, the received wisdom is that while climate change is happening (I acknowledge that some still have not received even this idea), it is incidental to the larger issues and can be addressed accordingly.  I submit that that is, like Ptolemy’s world-view, a paradigm that can be improved.  For example, if one is intent on acquiring property at the Shore, one can buy in fee simple, take a ground lease, or take a shorter term commercial lease.  If one is not actively considering the implications of sea level rise in the fundamental choice of the form of the transaction, one is at risk of finding oneself literally under water with no succor. If in contract documents one is making representations and warranties identifying all releases  of “hazardous materials” (broadly defined to be any substance regulated under environmental laws (a common approach)), without scheduling one’s HVAC systems, one is almost assuredly making inaccurate warranties because virtually all entities are emitting carbon dioxide.  If one relies on a flood plain map for planning purposes, without recognition that all flood plain maps are flawed because they only look backward (i.e., they assume the past accurately predicts the future, which is emphatically not the case in a world of climate change), one is again assuming a large risk.  I could go on.  The point is that the risks and possibilities of climate change are ubiquitous.  Our job as advocates and wise counsel to our clients is to assist the change to a perspective Copernicus might have adopted, one that incorporates climate change in the larger view.  As demonstrated by the attendance at my seminar, we have a long way to go in that regard.

Carbon Dioxide | Climate Change | Climate Change Effects | Insurance | Rising Sea Levels

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

April 29, 2013 05:49
by J. Wylie Donald
One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts.  The public trust doctrine is being hammered out in that direction. Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change.  Although the court affirmed the trial court’s dismissal of the suit, before reaching that conclusion it specifically rejected Arizona’s argument that greenhouse gas issues are non-justiciable under the doctrine. Butler is one of a slew of cases and regulatory petitions against the federal and state governments orchestrated by Our Children’s Trust, a public interest organization based in Oregon.  We have commented on OCT previously.  Its success has not been overwhelming, or even any.  Not one court has concluded that a state or the federal government can be compelled to do anything. Yet, if the measure of success is whether one’s theory is more well-formed than previously, and whether one can cite more legal precedent supporting it, then OCT is moving its ball forward.  By our count, OCT has positive rulings on its atmospheric trust theory from Texas, New Mexico and now Arizona. In Butler, the appellant raised only one issue:  "[w]hether the [public trust doctrine] in Arizona includes the atmosphere.”  The State of Arizona engaged that argument head on:  “the Doctrine does not include the atmosphere.”  Arizona also raised defenses of displacement, standing, and political question, among others.  The court considered prior Arizona and federal precedent to set forth the scope of the doctrine: First, that the substance of the Doctrine, including what resources are protected by it, is from the inherent nature of Arizona's status as a sovereign state. Second, that based on separation of powers, the legislature can enact laws which might affect the resources protected by the Doctrine, but is it up the to judiciary to determine whether those laws violate the Doctrine and if there is any remedy. Third, that the constitutional dimension of the Doctrine is based on separation of powers and specific constitutional provisions which would preclude the State from violating the Doctrine, such as the gift clause. From those principles the court had no difficulty responding to Arizona’s argument that the doctrine did not apply to the atmosphere:  “we reject the Defendants' argument that the determinations of what resources are included in the Doctrine and whether the State has violated the Doctrine are non-justiciable.”  Further, “While public trust jurisprudence in Arizona has developed in the context of the state's interest in land under its waters, we reject Defendants' argument that such jurisprudence limits the Doctrine to water-related issues.” (Note, however, Presiding Judge Gemmill concurred separately and stated:  "the atmosphere is not subject to the public trust doctrine.") Thus, “For purposes of our analysis, we assume without deciding that the atmosphere is a part of the public trust subject to the Doctrine.”  Unfortunately for the appellant, this was as far as the court was willing to go.  Appellant did not point to any violation of the Arizona Constitution or statutory law.  Such a violation was mandatory for the claim to succeed.  Additionally, in 2010 Arizona’s legislature took strong steps to ensure that the regulation of greenhouse gases remained in its bailiwick, rather than any administrative agency’s.  A.R.S. 49-191 provides: A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization. Absent a ruling that A.R.S. 49-191 was unconstitutional, there was no order the court could issue that would be able to implement the relief appellant sought.  Accordingly, appellant had no standing. Rome wasn’t built in a day.  The atmospheric public trust doctrine hasn’t been either.  But construction continues. 

Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation

State Common Law Carbon Dioxide Liability Claims: Premonitions of Preemption (and Dismissal)

November 28, 2012 21:48
by J. Wylie Donald
Left open by the Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527  (2011), was the question of whether state law nuisance claims for the emission of carbon dioxide were viable in the face of the Clean Air Act.  That question continued to be answered in the negative with the decision of the Western District of Pennsylvania last month in Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P. (W.D. Penn. Oct. 12, 2012) (attached), which was appealed to the Third Circuit the Friday before Thanksgiving.1    In Bell, plaintiffs, neighbors to defendant’s coal-fired electricity generating plant, filed suit alleging: that the [defendant’s] atmospheric emissions fall upon their properties and leave a film ofeither black dust (i.e., unburned coal particulate/unburned coal combustion byproduct) or whitepowder (i.e., fly ash). According to the Plaintiffs, those discharges require them to constantlyclean their properties, preclude them from full use and enjoyment of their land, and “make[them] prisoners in their own homes.”  Order at 2.  Plaintiffs further alleged that defendant did not use best available technology and was damaging the plaintiffs' properties, an outcome not permitted by defendant’s Permit to Operate.  Id. at 3.  As to legal theories, plaintiffs alleged nuisance, negligence and recklessness, trespass and strict liability.  Id. Defendant moved to dismiss, asserting, among other things, that the claims were preempted by the Clean Air Act.  Id. at 5.  The court agreed.  Plaintiffs had attempted to distance themselves from their complaint, which had criticized defendants for failing to comply with their Clean Air Act permit and sought injunctive relief.  They asserted in their papers that “[t]he Defendant is allowed to emit whatever millions of pounds of emissions the [EPA] has decided for Defendant but Defendant is not allowed by those emissions granted [to] it by the [EPA] to damage private property.”  Id. at 8. The court was not buying:  “A review of the Complaint reveals that the allegations of Plaintiffs, as pleaded, assert various permit violations and seek a judicial examination of matters governed by the regulating administrative bodies. … Thus, the Court reads the Plaintiffs’ Complaint, including its common law claims, as necessarily speaking to and attacking emission standards."  Id. at 10. The court specifically noted that the Supreme Court, in American Electric Power Co. v. Connecticut, had held that “the Clean Air Act preempted federal common law nuisance claims as a means to curb emissions from power plants.”  Id. at 12 (citing 131 S. Ct. at 2540).  It also noted, however, that the Court had not ruled on state law nuisance claims.  Those claims would depend “on the preemptive effect of the federal Act.” Id. (citing 131 S. Ct. at 2540). Did the Clean Air Act preempt state law nuisance claims?  The court had little doubt and turned for authority to the Fourth Circuit’s decision in N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291 (4th Cir. 2010), cert. dismissed, 132 S. Ct. 46(2011)).  In finding that “public nuisance claims were preempted because they threaten to scuttle the comprehensive regulatory and permitting regime that has developed over several decades,” Order at 12-13, the Fourth Circuit held:  A field of state law, here public nuisance law, would be preempted if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Here, of course, the role envisioned for the states has been made clear. Where Congress has chosen to grant states an extensive role in the Clean Air Act's regulatory regime through the SIP and permitting process, field and conflict preemption principles caution at a minimum against according states a wholly different role and allowing state nuisance law to contradict joint federal-state rules so meticulously drafted. Id. at 13, quoting Cooper. 615 F.3d at 303 (citations, quotation marks and alterations in original omitted). Accordingly, because the “specific controls, equipment, and processes to which the Cheswick Generating Station is subject to are implemented and enforced by [state and federal regulators]  Plaintiff’s Complaint, as pled, would necessarily require this Court [the Western District] to engraft or alter those standards, and judicial interference in this regulatory realm is neither warranted nor permitted. To conclude otherwise would require an impermissible determination regarding the reasonableness of an otherwise government regulated activity.”  Id. at 14.  Thus, plaintiffs’ claims were pre-empted. Plaintiffs had one slim hope.  The Clean Air Act contains a “savings clause”, which provides “[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).” 42 U.S.C. § 7604(e).  This too had been considered in Cooper and rejected.  Order at 14, citing 15 F.3d at 303-04.  Further, the Supreme Court had spoken on savings clauses as well:  “As we have said, a federal statute’s saving clause cannot in reason be construed as allowing a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act.”  Id. at 14, quoting AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1748 (2011).  Thus, the court found that “Based on the extensive and comprehensive regulations promulgated by the administrative bodies which govern air emissions from electrical generation facilities, the Court finds and rules that to permit the common law claims would be inconsistent with the dictates of the Clean Air Act.”  Id. at 15.  Accordingly, notwithstanding the suggestion by the Supreme Court in American Electric Power that state law nuisance claims for carbon dioxide liability might be viable, if the Western District’s analysis is correct and applicable to carbon dioxide, such claims will not survive for very long.   1Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012), also relied on American Electric Power and found state law nuisance claims displaced by the Clean Air Act.  That court had first found that plaintiffs’ claims failed due to res judicata and estoppel, and half a dozen other reasons, and its analysis of the displacement and preemption issue is not extensive. See Dismissed Means Dismissed: Comer v. Murphy Oil, the First Climate Change Liability Damages Suit, Is Tossed Again. 20121012 Bell v. Cheswick Generating Station, Order of Dismissal & Notice of Appeal.pdf (694.83 kb)

Carbon Dioxide | Climate Change Litigation | Supreme Court

Ninth Circuit Displaces Kivalina v. ExxonMobil Climate Change Liability Case

September 21, 2012 16:22
by J. Wylie Donald
In litigation concerning liability for the emission of greenhouse gases, the federal common law of nuisance is displaced by the Clean Air Act.  This is not news.  It was established by the Supreme Court over a year ago in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011). This morning, the Ninth Circuit Court of Appeals acknowledged the rule and applied it to the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. ("Opinion") and affirmed the dismissal by the Northern District of California.  See Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). In a nutshell, a native Alaskan village on the shores of the Chukchi Sea brought suit against electric utilities, oil companies and one coal company.  The complaint asserted the defendants are responsible for excess emissions of greenhouse gases, which have led to global warming, which has resulted in delayed formation of arctic sea ice and early melting of the ice, which has accelerated the erosion caused by winter storms.  The plaintiffs sought damages for the cost of relocating their village.  See Opinion 11648-49.  The Court of Appeals dutifully explained the federal common law of nuisance and the doctrine of displacement.  Plaintiffs had hoped to avoid the application of American Electric Power by arguing that it was a case about injunctive relief.  Kivalina was different:  the plaintiffs there sought damages.  The Court was unmoved.  It stated simply:  “under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.”  Opinion at 11655.  It did not matter that EPA had not acted before the damage was incurred; "Congressional action, not executive action, is the touchstone of displacement analysis.”  Opinion at 11656.  Nor did it matter that the Court’s decision would be applied retroactively.  Id.  The concurrence (Judge Pro of the District of Nevada, sitting by designation) was not as unequivocal as the Court, and explicated a tension between the Supreme Court’s rulings in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1, 4 (1981), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).  Middlesex expressly stated that “where a federal common law nuisance claim for injunctive relief is displaced, a federal common law nuisance claim for damages claim likewise is displaced”, but, according to Judge Pro, Exxon’s “overall holding suggests that severing rights and remedies is appropriate as between damages and injunctive relief in some circumstances.” Opinion at 11663, 11665. In the end, however, Judge Pro agreed that the doctrine of displacement shuts the door on federal common law claims for nuisances allegedly caused by greenhouse gas emissions whatever remedy is sought. More interesting and of more moment we think are two points made by the concurrence; the first will give heart to greenhouse gas plaintiffs, while the second may empty their sails. Judge Pro acknowledged that the Supreme Court’s decision and the 9th Circuit’s decision did nothing to affect the plaintiffs’ state law nuisance claims.  He wrote: Once federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law. AEP, 131 S. Ct. at 2540 (“In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act.”). The district court below dismissed Kivalina’s state law nuisance claim without prejudice to refiling it in state court, and Kivalina may pursue whatever remedies it may have under state law to the extent their claims are not preempted.  Opinion at 11671. We predicted this next phase when the case was argued back in November of last year.  Accordingly, the Kivalina case is not dead yet. However, judicial skepticism of climate change plaintiffs’ current liability theories is expanding.  Judge Guirola, in Comer v. Murphy Oil USA Inc in the Southern District of Mississippi, was dubious of the causation story:  “the tenuous nature of the causation alleged is readily apparent at the pleadings stage.”  Judge Pro went one further: Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.  Opinion at 11675.  To be sure, the Supreme Court approved an action by various States to challenge EPA’s failure to regulate greenhouse gases.  See Massachusetts v. EPA, 549 U.S. 497 (2007).  But “[i]t is quite another [thing] to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.”  Opinion at 11676. Judge Pro would have dismissed the case on standing grounds as well. Finally, notwithstanding our foresight above, it is rarely worth getting out the crystal ball to predict the outcome of a case or cases.  If we could do that with any reliability, we wouldn’t be sitting at this keyboard.  So rather than a prediction, we think offering some context is appropriate.  Will states be receptive to climate change liability suits as currently cast?  We are skeptical.  The environmental organization, Our Children’s Trust, orchestrated over a dozen lawsuits seeking to force state regulators to address greenhouse gas emissions.  With only one exception (New Mexico), those cases have been dismissed in jurisdiction after jurisdiction (Alaska, Arizona, Colorado. Minnesota, Montana, Oregon, Texas, Washington and the District of Columbia).  And even in the case that is moving forward, all the court permitted was an action to pursue whatever recourse was in place under current law, which is no more than the Supreme Court ruled in Massachusetts v. EPA. 

Carbon Dioxide | Climate Change Litigation

Is a Mass Filing the Right Strategy to Get Carbon Dioxide Regulation Going?

August 3, 2012 20:53
by J. Wylie Donald
After a string of defeats at the regulatory agencies and state and federal courts, Our Children's Trust finally notched two victories last month in its quest to use the public trust doctrine to implement carbon dioxide emission regulations.  Our Children's Trust, an environmental organization based in Oregon,  began its campaign in May 2011 when it oversaw the filing of nearly two score regulatory petitions and a dozen lawsuits seeking to force individual states to take action to restrict carbon dioxide emissions.   OCT's trademark feature is to include as plaintiffs "youth activists".  Up to the beginning of July it had not had any success.  But then, maybe, the tide began to turn.  First, on July 9 Texas District Court Judge Gisela Triana partially overrode the Texas Commission on Environmental Quality's decision rejecting a petition for rulemaking on the public trust doctrine.  Petitioners appealed the decision in Bonser-Lain v. TCEQ.  Petitioners had sought, relying on the public trust doctrine, to force the TCEQ to act to preserve the atmosphere by regulating carbon dioxide.  The TCEQ had concluded that in Texas the public trust doctrine applies solely to water.  Furthermore, according to the Commission, it was precluded from acting by the federal Clean Air Act, which preempted more restrictive state action.  Judge Triana made short shrift of both arguments.  Relying on Article XVI of the Texas Constitution she ruled:  "The Court will find that the Commission’s conclusion, that the public trust doctrine is exclusively limited to the conservation of water, is legally invalid. The doctrine includes all natural resources of the State.”  As to the preemption idea, the federal Clean Air Act "is a floor, not a ceiling, for the protection of air quality, and therefore the Commission's ruling on this point is not supported by law."  The court did find, however, that because of other pending litigation, the TCEQ did properly exercise its discretion in refusing to entertain the petition.  Second, on July 14, New Mexico District Court Judge Sarah Singleton refused to dismiss  a case asserting the State of New Mexico had an obligation to protect the atmosphere under the public trust doctrine.  The 18-line decision would hardly merit discussion except that this was the first decision allowing one of these cases to move forward.  Like the petitioners in Texas, the plaintiffs in New Mexico sought  to establish the public trust doctrine as a vehicle to control carbon dioxide emissions.  In a nutshell, Judge Singleton ruled that the suit, Sanders-Reed v. Martinez, could go forward insofar as it alleged that the State of New Mexico was not in compliance with laws passed by the New Mexico Legislature.  Specifically, the "Motion [to Dimiss] is DENIED to the extent that Plaintiffs have made a substantive allegation that, notwithstanding statutes enacted by the New Mexico Legislature which enable the state to set state air quality standards, the process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions."  The motion was successful, however, where the court dismissed claims "based on the New Mexico Legislature's failure to act with respect to the atmosphere."  These cases may or may not be important in the climate change arena.  To be sure, they upset an unbroken stream of victories for state regulators over OCT plaintiffs and will undoubtedly serve as a rallying point for the remaining cases as well as to-be-filed cases.  But the comments in  Bonser-Lain are only dicta and that Sanders-Reed survived a motion to dismiss says nothing about the merits.  But the mass-filing strategy by Our Children's Trust bears watching because it is not unique and may surface elsewhere.  Indeed it has. Following the filing of a class action against Thomas Jefferson Law School in California over alleged misrepresentations in law school placement data, a team of lawyers coordinated by two attorneys in New York, David Anziska and Jesse Strauss, put together a mass-filing strategy similar in some respects to that followed by OCT.  Twelve apparently is the magic number.  The law school placement team brought suit against a dozen law schools in jurisdictions across the nation.  Although another twenty suits are theoretically teed up as information from prospective plaintiffs is collected, those suits were promised for Memorial Day but have not yet materialized.  A big filing day is mandatory to maximize press coverage.   As were the atmospheric trust cases, the law school placement cases were nearly all filed on the same day.  Both litigation teams have sought public exposure throughout the course of the litigation. A defendant's typical response in both sets of cases is a motion to dismiss.  Some throw in everything and the kitchen sink, others are more thoughtful.  There is a danger to the kitchen sink approach; the court may issue a ruling giving the plaintiffs a set of victories as happened with Thomas Cooley Law School in Michigan (see attached) (even though Cooley ultimately prevailed at the trial court). But this is where the mass filing paradigm falls down.  Both sets of litigation are based on state law.  In the law school placement cases, two California cases have survived demurrers because California consumer protection law includes educational services (see attached), and two have been dismissed because, among other things, Michigan consumer protection law does not reach professional schools and New York law finds law students to be sophisticated consumers.  In the atmospheric public trust cases, notwithstanding case after case rejecting the claims, courts in New Mexico and Texas find under their states' laws that the theory is well-founded.  The lesson one should take from this is that, like politics, all law is local.  Well-timed press releases and news conferences touting the ineluctable triumph of the plaintiffs, at the end of the day count for very little.  Rather, what matters is the particular law of the particular jurisdiction on the particular facts of the case.  Both plaintiffs and defendants should take note. 20120726 Filing in Florida Coastal of USF and Golden Gate decisions.pdf (366.85 kb) 20120607 Initial Thomas Cooley Law School Order re Motion to Dismissf.pdf (67.07 kb)

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