Law Commons^™

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

Climate Change Action Without Congress, Michael B. Gerrard

Faculty Scholarship

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

Embracing Uncertainty, Complexity, And Change: An Eco-Pragmatic Reinvention Of A First-Generation Environmental Law, Mary Jane Angelo

Mary Jane Angelo

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, bird and wildlife species as well as ecosystem services, are in unprecedented decline. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carry out its mission of environmental protection. A number of recently-filed lawsuits assert that the registration of certain pesticides violates the federal Endangered Species Act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, which fueled the environmental movement of the late 1960s and early 1970s, largely have been …

What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard

Faculty Scholarship

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In …

Dc Circuit Clears Path For Ghg Rules, But Politics Remain, Michael B. Gerrard

Faculty Scholarship

What may have been the most important environmental decision of 2012 dismissed numerous challenges to the rules issued by the U.S. Environmental Protection Agency (EPA) to control emissions of greenhouse gases (GHGs). While further legal battles are looming, the most serious remaining threats to EPA's program are in the political sphere.

This article describes the ruling in Coalition for Responsible Regulation v. EPA, forecasts EPA's next moves, and describes the battles still ahead for EPA.

Measurement, Reporting & Verification Of Chinese Mitigation Commitments, Quiyan Zhao

Sabin Center for Climate Change Law

This paper discusses China's new transparency pledge – MRV as it relates to Chinese mitigation commitments – as laid out in the non-legal binding agreement reached at the United Nations Climate Change Conference in Copenhagen on December 18. 2009. Specifically, this paper compares China’s position on MRV with relevant mechanisms and requirements under the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Bali Action Plan, and the Copenhagen Accord. Furthermore, this paper seeks to answer several questions pertinent to the progress and challenges of China’s MRV regime: Are China’s GHGs emissions measured continuously? Are there review …

Domestic Mitigation Of Black Carbon From Diesel Emissions, Hannah Chang

Sabin Center for Climate Change Law

Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified as an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. With an emphasis on domestic mitigation, this Article examines how emissions are controlled under the CAA and what EPA, states, and municipalities can do to mitigate black carbon emissions further.

What’S Ahead For Power Plants And Industry? Using The Clean Air Act To Reduce Greenhouse Gas Emissions, Building On Existing Regional Programs, Franz T. Litz, Nicholas Bianco, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

In the absence of congressional action on climate change, all eyes are on the states and the United States Environmental Protection Agency (EPA) to see how they will regulate greenhouse gas emissions from existing large power plants and industrial facilities. Indeed, power plants and industrial facilities are the sources of half of all U.S. greenhouse gas emissions, making those plants and facilities central to any effort to reduce the country’s total emissions. This working paper explores a promising pathway for the states and EPA to make these reductions using the standards of performance under section 111 of the Clean Air …

Climate Change Litigation After Supreme Court Ruling In American Electric Power V. Connecticut, Mark Fulton, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut. This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases (GHGs) from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions.

Environmental And Energy Legislation In The 112th Congress, Michael B. Gerrard

Faculty Scholarship

When Barack Obama succeeded George W. Bush in January 2009, backed by solid majorities in both the House and the Senate, the country seemed poised for the first major environmental legislation since 1990, the year of the Oil Pollution Act and the 1990 Clean Air Act amendments. Under the leadership of Rep. Henry A. Waxman (D-CA) and Rep. Edward Markey (D-MA), the House passed a comprehensive climate change bill based on an economywide cap-and-trade system. The House also passed a bill to lift oil spill liability caps and adopt additional reforms in the wake of the Gulf of Mexico spill. …

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …

Epa's Impending Greenhouse Gas Regulations: Digging Through The Morass Of Litigation, Gregory E. Wannier

Sabin Center for Climate Change Law

As the U.S. Congress has failed to pass meaningful climate legislation, the EPA has initiated a series of regulations under the Clean Air Act designed to recognize greenhouse gases as endangering human health and welfare, and set greenhouse gas emission standards for vehicle fleets and for major stationary sources. Unsurprisingly these efforts have been challenged in the DC Circuit Court of Appeals. This paper discusses both the substantive and procedural issues surrounding the cases, all of which merit attention: in the absence of viable climate legislation these decisions will have important bearing on the extent to which the United States …

Cap-And-Trade Under The Clean Air Act?: Rethinking Section 115, Hannah Chang

Sabin Center for Climate Change Law

Section 115 of the Clean Air Act, addressing international air pollution, is widely-dismissed as a viable avenue for mitigation of greenhouse gases (GHGs) because of a misplaced assumption that National Ambient Air Quality Standards (NAAQS) must be established for GHGs before Section 115 authority can be exercised for GHGs. This paper explores the statutory language and legislative history of Section 115 to refute this conventional view, and argues that Section 115 can play a role in facilitating the establishment of a cap-and-trade program for GHGs without the establishment of NAAQS for GHGs.

Greenhouse Gas Disclosure Requirements Are Proliferating, Michael B. Gerrard

Faculty Scholarship

While climate change legislation is mired in Congress, several units in the Obama administration have been using their existing statutory authority to adopt rules or guidance requiring extensive disclosures about greenhouse gases (GHGs) in a wide variety of contexts. Every registered public company, the operators of many industrial facilities, and those involved in significant federal actions are now or will soon be covered by one or more of these requirements.

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard

Faculty Scholarship

When Jonathan Cannon, Michael Vandenbergh, and I started planning this conference last summer, we planned to call it “Implementing Climate Change Legislation.” We assumed that by today a new law aimed at addressing climate change would be in place, or at least would be in the final polishing stage, in the United States. We even imagined that the federal agencies would be rolling up their sleeves to implement not only the new U.S. climate law but also our part of the comprehensive climate pact that the nations of the world had agreed to in Copenhagen.

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …

Coal-Fired Powerplants Dominate Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Litigation aiming to reduce emissions of greenhouse gases (GHGs) is coming to be dominated by battles over coal-fired power plants. Ten of the last 20 judicial or administrative decisions or case filings in matters aiming to reduce GHGs have concerned such plants. A concerted effort by the environmental community to fight the use of coal is behind much of this litigation. According to the Energy Information Administration, the combustion of coal is the largest source of GHG emissions in the United States; motor vehicles are a not-very-close second.

The Sierra Club has a Web site that tracks all the proposed …

The Obama Administration's First Environmental Policy Changes, Michael B. Gerrard

Faculty Scholarship

Under President Clinton the U.S. EPA took the position that it had the authority to regulate greenhouse gases (GHGs) from motor vehicles under the Clean Air Act as written, but the Clinton administration did not take affirmative steps to actually employ that authority. When President Bush took office, the General Counsel of EPA took the opposite position, stating that it would need special authorizing legislation in order to architect that regulation. A petition was filed with the EPA by the International Council for Technology Assessment and other organizations asking EPA to impose such regulations. EPA denied the petition. This led …

Survey Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending.

Much attention has deservedly gone to the U.S. Supreme Court’s decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting.

This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those …

Stricter Rules On Storm Water Discharges Taking Effect, Michael B. Gerrard

Faculty Scholarship

On. 8, 2008, new requirements will take effect in New York requiring some previously unregulated entities to file for permits to discharge storm water, and imposing stricter or different requirements on those entities that are already regulated.

The state is requiring urbanized communities and publicly owned institutions, referred to as municipal separate storm sewer systems (MS4s), to establish fully functional stormwater management programs (SWMPs) by that date. The state has issued new draft permits for MS4s and also for operators of construction sites over one acre, which go into effect on Jan. 8.

Embracing Uncertainty, Complexity, And Change: An Eco-Pragmatic Reinvention Of A First-Generation Environmental Law, Mary Jane Angelo

UF Law Faculty Publications

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, bird and wildlife species as well as ecosystem services, are in unprecedented decline. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carry out its mission of environmental protection. A number of recently-filed lawsuits assert that the registration of certain pesticides violates the federal Endangered Species Act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, which fueled the environmental movement of the late 1960s and early 1970s, largely have been …

Emergency Exemptions From Environmental Laws After Disasters, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery.

This article explains how disasters helped create our current statutes, and then describes the role that environmental laws played in the immediate response to the September 11 attacks and Hurricane Katrina. It catalogs the multiple exemptions that already exist in the current environmental statutes and regulations and then summarizes the exemptions that were proposed after Hurricane Katrina.

Supplemental Environmental Projects Have Been Effectively Used In Citizen Suits To Deter Future Violations As Well As To Achieve Significant Additional Environmental Benefits, Edward Lloyd

Faculty Scholarship

Supplemental Environmental Projects (SUPs) are environmentally benefical projects included in settlements of environmental law enforcement cases. Courts have addressed SEPs in two contexts: where proposed by parties in consent decrees and where courts have fashioned SEPs as apart of the relief ordered in an enforcement case. SEPs have been extensively used in both government and citizen enforcement cases despite the nearly universal absence of any explicit legislative authorization by Congress. Congress has tangentially recognized the place of SEPs in the penalty and deterrence scheme by giving the Administrator of the United States Environmental Protection Agency (EPA) and the Attorney General …

Private Lawyers And Environmental Justice, Michael B. Gerrard

Faculty Scholarship

A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter – the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.

The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has …

Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes were enacted, or at least spurred along, in direct response to disasters. The Federal Water Pollution Control Act of 1972 followed from the Santa Barbara Oil Spill; the Emergency Planning and Community Right-to-Know Act (EPCRA) resulted from the chemical gas disaster in Bhopal, India; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was sparked by the Love Canal incident; and the Oil Pollution Acte was a reaction to the Exxon Valdez oil spill.

The terrorist attacks of September 11, 2001 have led to the Homeland Security Act and to several other enactments. The collapse of the …

Environmental Damages And Crimes, Jeffry S. Wade

UF Law Faculty Publications

In the effort to achieve environmental goals, policymakers have a number of tools available, including environmental and urban planning, regulatory and permitting programs, various types of incentives, purchasing programs, monitoring requirements, and the establishment of administrative, civil, and criminal sanctions. The applicability and effectiveness of these tools are of course dependent on the particular cultural, economic, and governmental context.

Though criminal enforcement of environmental laws is sometimes perceived as a reactive measure, representing the failure of other approaches, it can serve an important function in deterring environmental abuses; promoting respect for environmental policies; sanctioning persons who violate the law; and …

Reflections On Environmental Justice, Michael B. Gerrard

Faculty Scholarship

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents. This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning …

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.