Climate change science in the dock – US-style

16 September 2011 by David Hart QC

In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.

It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.

We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling.  Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.

Before Massachusetts reached the Supreme Court, other plaintiffs concerned about the lack of action by the EPA had, perforce, taken the private law route, starting proceedings in 2004. In American Electric Power Co., Inc. v. Connecticutseveral States, the city of  New York and three private land trusts sued five utilities (American Electric Power and others) as the top carbon-dioxide emitters in the US (650 million tonnes or 2.5% of global emissions), under the federal tort of public nuisance. Judgment was handed down by the Supreme Court on 20 June 2011.  It decided that there was no cause of action in public nuisance in respect of such emissions. Any such right (if there had been one) was displaced by the Clean Air Act and the actions taken by the US EPA, because the statute addressed precisely those gas emissions which were the subject of the litigation. The decision reversed that of the Court of Appeals, who thought that common law rights and freedoms had their part to play in addition to statutory controls.

A similar principle about how tort fits with some bits of statute can be seen in English law. The courts have decided that no claim in nuisance lies against a sewerage undertaker for lack of capacity in its sewers (Marcic v. Thames Water), because a claimant has an administrative remedy under the statute. In an another case, it was held that compliance with a statutory environmental permit may amount to a defence to the tort of nuisance (the controversial decision of Barr v. Biffa going to the Court of Appeal later this year). So tort is ousted, expressly or impliedly, in specific areas by statute.

Ironically, as Professor Robert Lee pointed out in his interesting post on this case, the reasoning in the decision may give the EPA additional gravitas in the face of political opposition. If Congress were to remove the EPA’s ability to regulate such emissions, we would be back to the free-for-all, to which the Supreme Court in AEP was averse, of

individual district judges issuing ad hoc case-by-case injunctions. Federal judges lack the scientific, economic and technological resources an agency can utilise in coping with issues of this order…Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of the regulators in the States where the defendants are located.

However, individual States may retain a right to sue at State level under the common law for pollution from another State and this may be a source of future climate change litigation. The Court declined an invitation by the defendants to overrule this line of authority.

The second case, Coalition for Responsible Regulation v. EPA, is due to be argued before the federal Court of Appeals in Washington.  It will be a huge showdown, so it is worth having a look at the battlelines before it gets to court. Post-Massachusetts, the EPA set greenhouse gas rules for certain vehicles. These include a Endangerment Finding, which says that carbon emission from moving vehicles are “reasonably likely” to threaten public health and welfare, and the Tailpipe Rule, which, based on the Endangerment Finding, sets GHG emission standards for Light Duty Vehicles.

Industry sought to challenge these Findings. Led by the Coalition for Responsible Regulation, whose conception of responsible regulation may be inferred from the identity of its co-petitioners, the Industrial Minerals Association, the National Cattlemen’s Beef Association, Rosebud (sic) Mining Company, and Massey Energy, they sought to persuade the EPA to reconsider these rules (see their petition) and then sought, in effect by way of judicial review, to have the rules struck down. They have now been joined by a mass of supportive additional parties, including a number of those in the running for the Republican presidential candidacy.

The arguments to and fro are well worth looking at, even if you are a doyen of climate change and climate change sceptic science.

The petitioners’ case (see, e.g. the brief of the non-state petitioners) is that the current EPA administration arrived with “pre-formed convictions that human GHG emissions are causing significant and harmful global climate change.” It says that the EPA relied almost exclusively upon the IPCC – which it was impermissible to do, and hence the EPA made no independent judgment. It invokes the notorious e-mails from the Climate Research Unit at the University of East Anglia – a staple for any climate sceptic – for which see my post on a recent round of “sceptics against UEA” and on the background to that dispute. In support of an argument that the EPA had not shown that reducing emissions from cars would make any difference to GHGs, the petitioners put it with no lack of vigour –

 “While regulations most assuredly may “whittle away” at health risks rather than eliminate them at one swoop, … EPA still must whittle and not just wave in the air.”

It added that fossil fuels comprise 85% of domestic energy sources and “create obvious health and welfare benefits for society”.  Elsewhere to the same effect:

“EPA’s one-sided analysis caused it to overlook that, as mankind has emitted more and more GHGs, every indicator of human health and welfare has improved. This correlation is not coincidental; expanding energy use is foundational to modernity.”     Or :

“The evidence on which EPA relies reveals profound uncertainty, yet EPA finds profound certainty. This discrepancy is the essence of arbitrary and capricious decisionmaking.”

Now for the other corner, for which we should see the EPA’s brief , more measured and less punchy than those of the petitioners. Its conclusion to its 156-page document is shortly put:

For all the foregoing reasons, EPA properly found that air pollution in the form of atmospheric concentrations of six greenhouse gases may reasonably be anticipated to endanger public health or welfare and that emissions from motor vehicles cause or contribute to this air pollution.

Contra the petitions, the EPA had looked at the various objections to climate science, in particular, the validity of certain temperature data, the IPCC analyses and the UEA e-mails. The EPA had concluded that the evidence in the petitions was inadequate, generally unscientific and failed to show that the EPA’s reasoning was flawed. Unsurprisingly, it also relies on the narrow standard of review applicable to technical matters within an agency’s area of expertise. In a neat summary of its scientific position, EPA’s conclusion that anthropogenic GHS emissions had very likely caused most of the past half-century of warming was based on three lines of evidence:

“The first line of evidence arises from our basic physical understanding of the effects of changing concentrations of greenhouse gases, natural factors, and other human impacts on the climate system. The second line of evidence arises from indirect, historical estimates of past climate changes that suggest that the changes in global surface temperature over the last several decades are unusual. The third line of evidence arises from the use of computer-based climate models to simulate the likely patterns of response to the climate system to different forcing mechanisms (both natural and anthropogenic).”

The EPA is not alone in its stance. It is supported by many States and NGOs. Recently, on August 25th,  a UK NGO, ClientEarth, brought a European perspective to the U.S. courts. Supported by others including Friends of Earth,  it submitted the first ever amicus curiae (friend of the court) brief by European organisations in a U.S. environmental case, jointly with US NGOs – there were so many parties that the Court ordered briefs to be merged (and word-limited). Their combined brief is equally worth reading. In response to the petitioners’ demands for certainty before action, one of the US NGOs noted;

Precautionary regulation based on scientific findings is even more important in the climate context: since the Earth’s climate systems are non-linear, we must address human impacts as soon as possible.


Petitioners also allege that current climate models are inaccurate, and that natural variability (such as variability in solar activity, volcanic activity, and global ocean current cycles such as El Nino) can account for the observed planetary warming. Tbis is simply not the case. During the last 50 years, the solar and volcanic activity (to which the Petitioners attribute observed warming) the climate would likely (>66% probability) have produced, all else being equal, a net cooling effect.

ClientEarth’s contribution is a polite reminder to the US Court of Appeals of three main things, the first that in the EU, an economy of comparable size to the US, the heavens have not fallen in since GHGs started being regulated (contra the Petitioners’ claims that any regulation is “burdensome” and “onerous”), the second, unlike many pollutants, the impact of GHGs is global, and the third, that Europe’s leading scientific authorities have reached similar conclusions to those underlying the EPA’s Endangerment Finding.

I shall keep you posted on the further twists and turns of this litigation which in all probability will end up in the Supreme Court.

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