Transcript Prospects for Climate Change Litigation

Prospects for
Climate Change Litigation
John Terry (Torys LLP) and
Jeffrey B. Gracer (Sive, Paget & Riesel P.C.)
April 23, 2007
8514121.1
© 2008 Torys LLP. All rights reserved.
I. The Constitution:
Who has authority to regulate?
CANADA
• Responsibility for environment not defined in Constitution
• R. v. Crown Zellerbach (1988) – federal law applies
where matters inherently of “national concern” and not
capable of provincial regulation alone
• R. v. Hydro-Quebec (1997) – federal law applies where
where criminal sanctions used
• Potential constitutional challenge of federal Regulatory
Framework for Climate Change?
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I. The Constitution:
Who has authority to regulate?
UNITED STATES
• Automobile emissions standards litigation
> Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie,
508 F. Supp. 2d 295 (D. Vt. 2007)
• Vermont’s greenhouse gas emissions regulations were not preempted
> Central Valley Chrysler-Jeep v. Witherspoon,
456 F. Supp. 2d 1160 (E.D.Cal. 2006)
• Absent an EPA waiver, California’s greenhouse gas emissions regulations
were preempted by the Clean Air Act
• Waiver of preemption under Clean Air Act for automobile
emissions standards
> California seeks waiver for greenhouse gas emissions standards (Dec.
21, 2005)
> EPA denies waiver request (Dec. 19, 2007)
> California petitions for review of denial (Jan. 2, 2008)
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II. Using Courts to Influence Federal
Governments to Regulate
CANADA
• Friends of the Earth I (May 2007) – ENGO Friends of the Earth filed a
judicial review application pursuant to CEPA seeking to require the
federal Ministers of Environment and of Health to take action on
emissions from Canada that may reasonably be anticipated to contribute
to air pollution in the U.S. in violation of Canada’s international treaty
obligations
• Friends of the Earth II (September 2007) – Friends of the Earth
brought a new application seeking to require the federal government to
prepare a revised climate change plan containing measures to
implement the Kyoto Protocol, as required by the Kyoto Protocol
Implementation Act
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II. Using Courts to Influence Federal
Governments to Regulate
UNITED STATES
• Courts:
> Massachusetts v. EPA, 127 S.Ct. 1438 (2007)
> 12 states sue to prompt EPA endangerment finding (Apr. 2008)
• Executive:
> EPA failure to regulate following Mass. v. EPA
> Pres. Bush statement re emission reduction goals (Apr. 16,
2008)
• Congress:
> Proposed legislation
> Lieberman-Warner Climate Security Act (Senate bill)
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III. Civil Actions Against Government
and Business
SOME CAUSES OF ACTION
• Nuisance
• Public Nuisance
• Negligence
FORM OF ACTION
• Individual Action
• Class action
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III. Civil Actions Against Government
and Business
CANADA
• Hollick v. City of Toronto (2001) – Supreme Court of Canada
upheld a Divisional Court decision not to certify the class action of
~30,000 people living near a City of Toronto landfill
• Pearson v. Inco (2005) – Ontario Court of Appeal certified a
class action Inco in relation to alleged environmental damages caused
by long-term emissions from a nickel refinery in the Port Colborne area
> first Canadian class action to be certified for long-term historic
environmental harm in any province other than Quebec
• St-Lawrence Cement v. Huguette Barrette (2008) – On
March 27, 2008, Supreme Court of Canada heard submissions re class
action against St. Lawrence Cement for neighborhood disturbances
resulting from the operation of a cement plant
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III. Civil Actions Against Government
and Business
UNITED STATES
• Judicial abstention from political questions
> California v. GM, 2007 WL 2726871
(N.D.Cal. Sept. 17, 2007)
> Connecticut v. American Electric Power,
406 F. Supp. 2d 265 (S.D.N.Y. 2005)
• Kivalina v. ExxonMobil,
(filed N.D.Cal. Feb. 26, 2008)
> Federal common law public nuisance claim
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III. Civil Actions Against Government
and Business
• Comer v. Nationwide Mut. Ins.,
2006 WL 1066645 (S.D.Miss. Feb. 23, 2006)
> Property owners suffering alleged losses as a result of
Hurricane Katrina; sued chemical and oil companies for
contributing to global warming
• Barasich v. Columbia Gulf Transmission Co.,
467 F. Supp. 2d 676 (E.D.La. 2006)
> Louisiana residents sued oil and gas companies for actions
contributing to destructive impact of Hurricane Katrina
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IV. Cross-Border Actions
U.S. Plaintiff v. Canadian Defendant
• Pakootas v. Teck Cominco Metals (2006)
> Ninth Circuit Court affirmed the validity of an EPA order
issued to Teck Cominco, a Canadian company, with respect
to pollution that originated entirely within Canada
Canadian Plaintiff v. US Defendant
• Edwards v. DTE Energy Company (January 2008)
> Ontario Superior Court of Justice was directed to issue a
summons to DTE Energy Company to face charges in
Canada for atmospheric mercury emissions in Michigan that
had allegedly harmed fish and fish habitat in Canada
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V. Environmental Assessment/Impact
Review
CANADA
• Pembina Institute for Appropriate Development, et al v. Attorney
General of Canada and Imperial Oil Resources Ventures (March 2008)
> the Federal Court of Canada remitted the environmental assessment for
Imperial Oil’s proposed Kearl Oil Sands Project back to the joint
federal/Alberta review panel that had recommended the Project be
approved, requiring the panel to explain why the Project’s proposed
mitigation measures, such as its intensity-based targets for reducing its
GHG emissions, would reduce these emissions to a level of insignificance
• Conservation Council of New Brunswick, et al v. Minister of the
Environment, et al (filed December 2007)
> judicial review of the actions of federal ministers in relation to the federal
environmental assessment of the Irving Oil Eider Rock Project, alleging the
ministers had not properly defined the project to be assessed and that
proper public consultation had not occurred
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V. Environmental
Assessment/Impact Review
UNITED STATES
• Center for Biological Diversity v. Nat’l Highway Traffic Safety
Admin., 508 F.3d 508 (9th Cir. 2007)
> Requiring analysis of cumulative impacts of greenhouse gas emissions in
environmental review statement
• Petition seeking CEQ standards for climate change analyses
under NEPA (Feb. 28, 2008)
• Developments at the state level
> Massachusetts – MEPA Greenhouse Gas Emissions Policy and Protocol (Oct.
2007)
> California, New York, Washington currently developing policies
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