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Provides an overview of legal liability issues and claims based on climate change.
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Climate Change LiabilityThe Evolving Legal Framework
October 14, 2008
Munich Re Climate Change and Liability Workshop
Princeton, New Jersey
What We Know
• Intergovernmental Panel on Climate Change (IPCC) 4th Assessment Report (2007):
“ Warming of the climate system is unequivocal ”
Anthropogenic activities (historic and continuing) are significant contributors to climate change
Relative contribution of greenhouse gas (GHG) emissions from different regions of the world is shifting rapidly
What We Don’t Know
Contribution of individual, sector, and jurisdictional sources are diverse and difficult to assess
Impacts are diverse and hard to predict
– Increased incidence and severity of hurricanes, typhoons, thunder and hailstorms
– Potential erosion and flooding of coastal areas from changes in ocean elevation
– Impacts to non-coastal areas from landslides, subsidence, wildfires
Range of Related Legal Liabilities
• Application of existing laws and regulations at the federal and state levels– Federal Clean Air Act– National Environmentahttp://lh4.ggpht.com/_n-
Y9S3Fy_dY/ReEf8Lgi4PI/AAAhttp://lh4.ggpht.com/_n-Y9S3Fy_dY/ReEf8Lgi4PI/AAAAAAAAADc/OWJQZvRzLKs/IMG_6214.JPGAAAAAADc/OWJQZvRzLKs/IMG_6214.JPGl Policy Act and state equivalents
• Development of new regulatory strategies– Current proposals in Congress for “cap and trade” systems– California’s AB 32
• Litigation– Standing and damages
Climate Change Liability In the United States
U.S. failure to respond at the federal policy level– Reluctance to support international strategies– Failure to pursue domestic strategies
Application of existing laws and regulations– Federal Clean Air Act– National Environmental Policy Act and state
equivalents Development of new regulatory strategies
– Recent federal proposals for “cap and trade”– California’s AB 32
Regulation of GHG Emissions Under the Federal Clean Air Act
Massachusetts v. U.S. Environmental Protection Agency– (U.S.Supreme Court - April 2007)
– CO2 in automobile emissions as an “air pollutant”
– Standing of Massachusetts to sue - imminent jeopardy by rising sea levels that “have already begun to swallow Massachusetts’ coastal lands”
Massachusetts v. EPA II– Filed April 2, 2008
– Seeks order directing EPA to issue endangerment determination and initiate rulemaking process
Federal Environmental Review Cases
Federal Environmental Review Cases
Border Power Plant Working Group v. DOE, 260 F. Supp. 997 (S.D. Cal. 2003)
Mayo Foundation v. Surface Transportation Board, No. 06-031 (8th Cir. 2006)– [Mid-States Coalition for Progress v. Surface
Transportation Board, 345 F.3d 520 (8th Cir. 2003)] Friends of the Earth v. Mosbacher
– Mosbacher I (Friends of the Earth v. Watson, No. 02-4106C, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005))
– Mosbacher II (Friends of Earth, Inc. v. Mosbacher, No. 02-04106C, 2007 WL 962955 (N.D. Cal. Apr. 30, 2007))
National Environmental Policy Act (NEPA)
California Environmental Review Cases
California Environmental Review Cases
California Environmental Quality Act (CEQA)
Strategy and recent settlements County of San Bernardino (land use) ConocoPhillips
Conduct energy efficiency audit at refinery Conduct GHG audit of all California facilities Pay $7 million to carbon offset fund Pay additional $3 million for other mitigation
measures
Liability under Common Law Litigation TheoriesLiability under
Common Law Litigation Theories
Global warming as a “public nuisance”
• Connecticut v. American Electric Power - GHG emissions from electric power generation facilities– Seeking injunction to abate GHG emissions with cap
and subsequent percentage reductions– Dismissed - lack of subject matter jurisdiction (political
question)• California v. General Motors - GHG emissions from
motor vehicles– Federal and state law claims– Dismissed on September 17, 2007 - failure to state
valid claims
Katrina LitigationHurricane-Related Litigation
Comer v. Murphy Oil USA
Allegation: GHG conduct of defendant oil and coal companies, chemical manufacturers, and insurance companies result in GHG emissions that cause global warming and increase frequency and intensity of hurricanes
Claims for unjust enrichment, civil conspiracy, nuisance and trespass, negligence and fraudulent concealment
Alleged damages: property loss, loss of property use and enjoyment, loss of business and income, cleanup costs, emotional distress
August 30, 2007 - dismissed for lack of subject matter jurisdiction (non-justiciable political question - notice of appeal on September 17, 2007)
Proposed Federal LegislationRecent Federal Proposals
Proposed Federal Legislation• At least ten legislative proposals focused on climate
change introduced in Congress during 2007
Lieberman-Warner-Boxer
• “Climate Stewardship and Innovation Act” (S.280) introduced on October 16, 2007
Senate Environment and Public Works Committee reported bill to full Senate on December 5, 2007, by a vote of 11-8
First bill mandating economy-wide reductions in greenhouse-gas emissions reported out of committee in either house
Bipartisan sponsorship: Lieberman (I-CT), Warner (R-VA), Casey (D-PA), Coleman (R-MN), Collins (R-ME), Dole (R-NC), Harkin (D-IA), Klobushar (D-MN)
Tabled – June 2008
State Legislation
State and Regional Proposals
AB 32 – California’s Global Warming Solutions Act of 2006
First enforceable state-wide program to cap all GHG emission from major industriesRegulatory development underway now– Determination off 1990 baseline and 2020 emissions
limit– January 1, 2009 - CARB to approve scoping plan for
achieving 2020 emissions– January 1, 2010 - Implementation of early action
reduction measures– January 1, 2011 - Adoption of limits and reduction
measures– January 1, 2012 - Regulations go into effect
Other state and regional activities
Proposals for Climate Disclosure Rules
Proposals for Climate Change Disclosure Rules
Currently voluntary program to disclose climate-related risk information
September 18, 2007 petition to SEC by state pension plans and institutional investors
– Asks SEC to assess and disclose “material” financial risks from climate change
– Material risks include financial impacts from emerging carbon-reducing regulations, extreme weather and other physical events, demand for low-carbon technologies and products
Related developments in Congress (hearings and proposed legislation)
Conclusion
CONCLUSIONS
Kevin T. Haroff
Shook Hardy & Bacon LLP
333 Bush Street, Suite 600San Francisco CA 90104-2828
SF Office (415) 544-1961SF Fax (415) 391-0281Mobile (415) 336-6494
Email – [email protected]