Photo of scenic Gloucester Valley by Groundswell Gloucester

By Dena Adler

A groundbreaking ruling will break no new ground for a proposed Australian coal mine. On February 8, 2019, the Land & Environment Court of New South Wales upheld the government’s denial of an application by Gloucester Resources Limited to construct an open cut coal mine in New South Wales (NSW). The proposed Rocky Hill Coal Project aimed to produce 21 million tonnes of coal over a period of 16 years. The court determined the project was not in the public interest after weighing the social and environmental costs of the project, including an extended consideration of how the project would worsen climate change.  While the decision’s specific legal context may limit its exact replicability, the decision to uphold a permit denial on the basis of negative climate change impacts, could bolster climate suits around the world. This blog provides a quick review of the case and its noteworthy developments. Read more »

Today, the Sabin Center filed an amicus brief on behalf of local governments in support of state and environmental petitioners in California v. EPA, the lawsuit challenging the Environmental Protection Agency (EPA)’s revised determination on the appropriateness of the greenhouse gas emission and fuel economy standards for light-duty vehicles (commonly referred to as the “clean car standards”).

The clean car standards established under the previous administration are the most important federal measure currently in place to control greenhouse gas (GHG) emissions in the United States. The EPA decision at issue in this case triggered a new rulemaking process which has culminated in a proposal to weaken the standards. States, cities, and environmental groups have filed lawsuits challenging that decision in the D.C. Circuit Court of Appeals.

The local government amicus brief highlights the importance of the clean car standards to cities and counties across the country and provides a local government perspective on why EPA’s decision is unlawful. In particular, members of the local government coalition emphasize the fact that EPA issued its decision without providing adequate opportunities for public engagement – thus excluding local governments from what was supposed to be an open and transparent process – and that EPA has reached erroneous conclusions about the feasibility of meeting the existing standards.

Signatories to the brief include the U.S. Conference of Mayors (USCM); the National League of Cities (NLC); the City of New York, NY; Los Angeles, CA; Chicago, IL; King County, WA; Santa Clara County, CA; San Francisco, CA; Baltimore, MD; Oakland, CA; Minneapolis, MN; Boulder County, CO; Pittsburgh, PA; Ann Arbor, MI; West Palm Beach, FL; Santa Monica, CA; Coral Gables, FL; and Clarkston, GA. This coalition of local governments is representative of the diverse communities affected by the proposed roll back of the clean car standards, and the participating cities and counties are home to more than 22 million people located across the United States.

Read the brief here.

The 2018 Farm Bill is surprisingly climate-conscious


Posted on February 8th, 2019 by Tiffany Challe

By Peter Lehner, Managing Attorney, Sustainable Food and Farming, Earthjustice

February 2019

Roughly every five years, Congress revises and renews the Farm Bill to fund our nation’s food security, nutrition, and farm conservation programs. The 2018 Farm Bill, which passed with large bipartisan majorities in both chambers, is surprisingly climate-conscious. Its successes will serve as a foundation upon which future more aggressive climate-smart farm policy can be built.

The Farm Bill’s climate change benefits stem from a number of provisions that incentivize more climate-friendly practices. For example, the Farm Bill’s federal crop insurance program will now allow — rather than discourage — greater use of cover crops, a practice that has well-proven climate and water quality benefits. This program, which is now the primary federal subsidy to industrial farming, has often inhibited the use of climate-friendly practices such as cover crops and longer crop rotations, while at the same time encouraging planting on marginal lands, which are better suited as habitat for wildlife, buffers for streams, and carbon sinks. The 2018 law takes steps to end these perverse incentives.

The Conservation title of the bill contains a number of programs that will help curb climate change. This title continues to provide about $6 billion annually to the Conservation Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program, all of which saw modest improvements in the 2018 Farm Bill. The changes to EQIP, which generally provides a 75 percent cost-share for installation of approved conservation measures, best illustrate how these traditional programs can pay climate and environmental dividends, with the added twist of garnering the support of fiscal conservatives.

EQIP data from USDA indicated that only 14 percent of EQIP funding went to conservation practices identified as producing the most environmental benefits. To turn the tide, the new law allows states to identify 10 highly effective conservation practices to be eligible for a greater financial incentive. Since climate change induced farm losses harm both the farmer and the taxpayer — for example, climate-driven natural disasters in 2012 incurred $17.3 billion in crop insurance payments – shifting to more efficient practices is a sound fiscal move as well.

The Bill also increases funding for organic farming and for a range of practices that help store carbon in the soil and emit fewer greenhouse gases. It also lowers the set-aside for EQIP funds for livestock operators from 60% to 50%, which is critical since livestock operations are responsible for about 80 percent of agriculture’s climate change impact.

CRP pays farmers to take environmentally sensitive land out of production for 10 to 15 years.  Because producers often bring their CRP acres back into production when the contract expires, releasing any carbon stored in the soil during the off years, the benefits are often only temporary.  The bill supports climate-friendly practices like riparian buffer and prairie strips and authorizes 30-year contracts on a pilot basis.  The law also provides a minimum number of acres to be enrolled in the program that targets the most environmentally sensitive lands and pays producers to establish tree and grass buffers along streams.  These water quality provisions both have a climate impact and create a precedent for more climate-change-focused amendments in the future.

Finally, the 2018 Farm Bill increases Conservation Stewardship Program payment levels for cover crops, resource-conserving crop rotations, and management-intensive rotational grazing – all of which reduce water pollution, help slow climate change, and help producers weather climate change.  It also establishes a soil health demonstration program, funded at $15 million, setting a good precedent for larger future action by the federal government and states.

The same provisions that fight climate change, will also encourage practices that protect the drinking water of millions. Industrial-scale agriculture — the large chemical-dependent monocultures where the same crop is planted year after year and the production of grain-fed animals in enormous enclosed facilities — is one of the largest sources of water pollution in the country, such as the dead zone in the Gulf of Mexico or the eutrophication of the Chesapeake Bay. This agricultural water pollution can render water unfit for further human use and impose significant drinking water treatment costs on thousands or millions of communities and homeowners, such as when Toledo had to shut its water supply due to algal toxins, or the nitrate contamination in thousands of drinking water wells that could cause “blue baby syndrome.”  As a result of the clear and present threat, Sen. Debbie Stabenow (D-MI), a lead negotiator of the final bill, was able to build bipartisan agreement to support practices that could reduce this pollution.

As a climate bonus, the 2018 Farm Bill also takes some steps to help reduce food waste, most of which now rots in landfills, releasing large amounts of methane.  The bill funds pilot projects in ten states to develop local composting and food waste reduction efforts and promotes the donation of agricultural commodities.  It also creates a Food Loss and Waste Reduction Liaison in the USDA to coordinate federal programs and clarifies liability protections for food donations, among other measures.

This legislation comes at a critical moment, when our country must decide whether and how to deal with the dramatic warming of the planet. Two recent climate reports confirm that we must act on climate change quickly, and that the extreme weather climate scientists have been warning us about are here and will worsen in the years ahead.

Our agricultural activities are both contributors to and victims of the changing climate. At the same time that industrial agriculture releases tremendous amounts of greenhouse gases from excess fertilization, tillage, manure, and animal emissions, our farms and ranches are also particularly vulnerable to the floods, droughts, heat waves, pests, and other problems that climate change exacerbates. For example, the 2016 California drought resulted in over $600 million in economic loss; Hurricane Maria in 2017 devastated 80% of Puerto Rico’s agriculture and caused $780 millionin losses; heat waves threaten both crops and farmworkers.  It’s to everyone’s benefit to help those who produce our food be ready for the changing weather.

Moreover, farmers and ranchers are uniquely situated to help slow climate change simply by preparing for it. Sustainable farmers and ranchers around the country have repeatedly demonstrated that many farming practices can help both slow and withstand climate change. There are many practices that increase carbon stored in soil or that use natural systems to reduce chemical needs and thus lower greenhouse gas emissions. At the same time, they increase the amount of water the soil can absorb and enrich the fertility of the soil, thereby helping farmers endure worsening conditions. These same practices also reduce water pollution and save farmers money.

Given the scale and scope of the climate problem we face, more needs to be done in the next Farm Bill — indeed, much sooner — to accomplish the change needed in the agricultural sector so that it can produce sufficient nutritious food in more extreme weather without making climate change and other pollution worse. This won’t be easy given that theFarm Bureau, one of strongest voices shaping US agriculture policy, repeatedly and fiercely opposes any efforts to curb climate change, and the U.S. Department of Agriculture, as part of Donald Trump’s administration, never mentions climate change. Yet, it’s necessary.

The 2018 Farm Bill, by lifting up practices known to have multiple environmental benefits, is a promising place to start.

[1] An analysis of opportunities to include climate change mitigation and adaption in the farm bill is provided in Lehner & Rosenberg, Legal Pathways to Carbon-Neutral Agriculture (ELR, 2017). This article, in turn was derived from the agriculture chapter in “Legal Pathways to Deep Carbonization in the United States,” edited by Michael Gerrard and John Dernbach (ELI, 2018) (summary and key recommendations available here).

February 2019 Updates to the Climate Case Charts


Posted on February 7th, 2019 by Romany Webb

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 118.

FEATURED CASE

Ninth Circuit Rejected Challenge to California’s Low Carbon Fuel Standard

The Ninth Circuit Court of Appeals upheld California’s Low Carbon Fuel Standard (LCFS), rejecting claims under the Commerce Clause that largely echoed unsuccessful arguments made before the Ninth Circuit in a previous appeal concerning only the 2011 and 2012 versions of the LCFS. The Ninth Circuit noted that although the LCFS had been repealed and replaced in 2015, the “core structure” of the regulations (with their emphasis on fuels’ lifecycle emissions) and claims was the same as it had been when the court decided the first appeal. The Ninth Circuit therefore ruled that its prior decision on the 2011 and 2012 versions of the LCFS precluded the plaintiffs’ claims that the 2015 LCFS constituted impermissible extraterritorial regulation and that it facially discriminated against interstate commerce in ethanol and crude oil. Regarding extraterritoriality, the court rejected the argument that the LCFS was motivated by a concern for environmental harms in other states, stating: “California did not enact the LCFS because it thinks that it is the state that knows how best to protect Iowa’s farms, Maine’s fisheries, or Michigan’s lakes.” The court said California’s interest in lifecycle emissions arose from its concern about climate change’s impacts on California and that the LCFS was therefore “a classic exercise of police power.” Regarding facial discrimination, the court said that California was attempting “to address a vitally important environmental issue with vast potential consequences” and that it could not offer “a potential solution to the perverse incentives that would otherwise undermine any attempt to assess and regulate the carbon impact of different fuels … without the ability to differentiate the different production processes and power generation that are used to produce those fuels.” The Ninth Circuit also held that the plaintiffs’ “structural federalism” claim was precluded by the court’s recent decision on Oregon’s Clean Fuel Program, in which the Ninth Circuit concluded that any such claim would be contingent on a finding that the program regulated extraterritorially. The Ninth Circuit emphasized that “[t]here is simply no reason to search beyond the Commerce Clause for the Constitution’s limits on the ability of states to affect interstate commerce.” In addition, the Ninth Circuit found that the plaintiffs had failed to take advantage of the opportunity given by its earlier decision on the 2011 and 2012 LCFS to show that the LCFS was actually intended “to prop up local fuel interests” and discriminate against interstate commerce. The court also dismissed claims against the 2011 and 2012 versions of the LCFS as moot because the challenged laws were no longer in effect and plaintiffs’ obligations under the earlier versions had been discharged. Rocky Mountain Farmers Union v. Corey, No. 17-16881 (9th Cir. Jan. 18, 2019).

Read more »

   The sun sets on a Chevron Gas Station in California

The Sabin Center, in partnership with the Columbia Environmental Law Clinic, today filed an amicus brief in the Ninth Circuit Court of Appeals on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association in County of San Mateo v. Chevron Corporation—a case brought by California counties and cities aiming to hold fossil fuel companies accountable for damages from and the costs of adaptation to sea level rise and other climate change impacts.

The California counties and cities are asking the Ninth Circuit to affirm their right to litigate their state public nuisance, tort, trespass, and product liability claims in state court, and to uphold a federal district court remand order. Earlier, the fossil fuel companies had removed the case to federal court, arguing, among other things, that only federal law could apply to the local governments’ claims and that the removal was proper under a provision that provides for federal court jurisdiction over claims involving federal officers.

The amicus brief makes three arguments in support of affirming the remand order:

  1. The scope of appellate review is narrow. Consistent with the general ban on appellate review of remand orders and the language and purpose of the limited exception for federal officer removal, the Ninth Circuit only has jurisdiction to consider whether the case was properly remanded for lack of federal officer jurisdiction. While on the one hand this is a technical point, the limited scope of review is consistent with the federalism principles that underlie both the ban and the exception, and are a key concern to local governments nationwide.
  2. Plaintiffs pled state law claims in state court, and they are entitled to pursue those actions in that forum. There are simply no uniquely federal interests at stake in the case sufficient to require conversion of Plaintiff’s state law claims into federal law claims or to confer federal jurisdiction.
  3. Supreme Court and Ninth Circuit precedent are clear: The Clean Air Act’s displacement of a federal common law cause of action for nuisance for climate change requires the state law cause of action for nuisance to be treated on its own terms.

Local governments, which represent the majority of Americans and host a significant part of the nation’s economic activity, have a critical interest in climate change litigation, and should be able to sue fossil fuel companies in state courts. As the district court correctly determined, these cases, in which California counties and cities are suing fossil fuel companies as product manufacturers based on state law claims, belong in state court.

By Dena Adler

Photo Credit: SC National Guard

Since September 2017, Congress has kept the National Flood Insurance Program (NFIP) afloat with a series of short-term extensions, repeatedly punting on a valuable opportunity to issue a long-term reauthorization and reform the program to better protect communities from the increased risks of flooding spurred by climate change. But  the federal government is not the only entity poised to take action. A new white paper from the Sabin Center and the Natural Resources Defense Council, “Breaking the Cycle of “Flood-Rebuild-Repeat”: Local and State Options to Improve Substantial Damage and Improvement Standards in the National Flood Insurance Program,” proposes legal and policy reforms that states and localities can implement to make their communities more resilient and to update the NFIP for the realities of climate change.

Congress established the National Flood Insurance Program (NFIP) in 1968 to reduce flood damages nationwide and ease the Federal government’s financial burden for providing disaster recovery.  Today, approximately 22,000 communities in all 50 states and U.S. territories participate in the NFIP. The program has 5.1 million flood insurance policies providing $1.3 trillion in coverage. But due largely to recent flood disasters and charging insufficient premiums that don’t reflect homeowners’ true risk exposure, the NFIP has sunk over $20.5 billion in debt.

A proportionally small number of properties insured through the program are repeatedly flooded, repaired, and rebuilt. These properties, known as “severe repetitive loss” (SRL) properties, contribute disproportionally to the rising debts of the NFIP program. SRL properties represent just 0.6 percent of the roughly 5.1 million properties insured through the NFIP, but they account for a 9.6 percent of all damages paid, as of 2015. Climate change impacts, including sea level rise, more intense and frequent precipitation events, and increased storm surge, put these already vulnerable properties at even greater risk and will greatly increase the number of properties caught in this cycle of “flood-rebuild-repeat.”

Fortunately, the NFIP contains an adaptive mechanism—the substantial improvement/damage (“SI/SD”) standard—which can break the cycle of “flood-rebuild-repeat.”  To join the NFIP, communities must adopt and enforce a uniform set of floodplain regulations, which include the SI/SD standard. The SI/SD standard requires property owners making significant improvements or repairs to structures in areas most vulnerable to flooding to take certain measures to mitigate their risk. These measures include requirements to elevate, relocate, or demolish a residential structure. Non-residential structures may be flood-proofed. However, two critical shortcomings of the current FEMA SI/SD definition undermine the effectiveness of program: 1) the SI/SD standard is only triggered when damages or repair work are equal to or exceed 50 percent of the fair market value of the structure, and 2) the regulatory definitions of “substantial improvement” and “substantial damage” do not consider repetitive cumulative repair work or cumulative damage over time.

A number of NFIP communities have undertaken more rigorous SI/SD standards as part of the Community Rating System (CRS) Program which rewards communities which mitigate their flood risk by reducing flood insurance premiums for their citizens. Review of 2013 data from FEMA, the most current that the agency could provide, revealed that among the 1,444 communities participating in the CRS program, roughly 1/3 receive points for taking some action toward instituting a more rigorous cumulative or lower threshold SI or SD standard. More specifically:

  1. At least 309 communities received CRS credit for a cumulative SI or SD standard with at least a 10-year tracking requirement.
  2. At least 90 communities received CRS credit for a cumulative SI or SD standard with at least a 5-year tracking requirement.
  3. Collectively, these communities represent roughly a quarter of CRS communities (399/1444 or 27.6 percent), illustrating an opportunity for many more communities to follow suit.
  4. Few communities utilize a threshold below 50 percent of market value for measuring substantial damage or improvements. FEMA data identifies 25 communities receiving credit for less than a 50 percent threshold and 32 communities receiving credit for a regulatory threshold that is no more than 25 percent of the square footage of a building’s lowest floor.

Reforming the SI/SD standard to calculate damages cumulatively over time and to be triggered for damages and repair work worth less than 50 percent of the fair market value of the structure can help the NFIP program better weather a changing climate, lessen the taxpayer burden, and increase the safety of millions of homeowners. Through model flood ordinances, building codes, other regulations, and guidance, states have several mechanisms to encourage or require municipalities and counties to adopt these more protective standards. This white paper proposes model ordinance language for state-level programs or direct adoption by communities that integrates both cumulative and lower threshold definitions of substantial damage and improvement. Communities will yield three primary benefits from adoption of such standards:

  1. The proposed model ordinance should help communities better protect people and property by bringing older housing stock into current floodplain management requirements more expediently.
  2. The proposed cumulative and lower threshold model ordinance is structured to satisfy Increased Cost of Compliance (ICC) coverage requirements to ensure that NFIP policyholders are eligible for financial assistance to bring their structure into compliance after a flood.
  3. The proposed model ordinance is designed to maximize Community Rating System (CRS) credit, which will help communities attain a higher CRS ranking, and thus, reduced insurance costs for their residents.

Nevertheless, several challenges arise in effectively raising the SI/SD standard related to tracking, financing, and equity. These challenges can be at least partially mitigated through: 1) issuing disclosure laws that track expenditures for repairs and damages over time so that potential buyers and new owners are aware of their property’s history, 2) pursuing novel financing and insurance strategies that could reduce the administrative and monetary burden of implementing the proposed SI/SD standard, and 3) integrating equity and underlying social vulnerability considerations into a reform package and providing adequate financing and other support. Read the full report to learn more.

By Dena Adler

Houston Ship Channel. Photo Credit: United States Coast Guard, PA2  James Dillard.

The escalating costs of damages from extreme weather events, many exacerbated by climate change, makes poignant a question with a serious price tag: who will be on the hook to pay for climate damages? In 2018, a host of lawsuits wound their way through the courts seeking an answer, including several from localities and states alleging the responsibility of fossil fuel companies. Also important, but not yet as litigated, will be the question of who should pay to prepare infrastructure for climate change impacts and so prevent potentially disastrous and expensive consequences. For example, Texas is seeking $12 billion, mostly from the federal government, for a 60-mile “spine” of seawalls that will protect a section of the Texas Gulf Coast—including a hotbed of petrochemical facilities vulnerable to spewing a toxic mess if damaged during a future hurricane. But what actions does the law require these facilities to take on their own to prepare for climate change and should those requirements be set higher? A new article from Sabin Center Climate Law Fellow Dena Adler analyzes developing litigation shaping an initial answer to these questions in the context of energy and industrial infrastructure.

Read more »

By Jessica Wentz

On December 28, 2018, California adopted comprehensive amendments to the California Environmental Quality Act (CEQA) Guidelines, which include a suite of provisions aimed at improving the analysis of greenhouse gas (GHG) emissions and climate change impacts in state environmental reviews. These provisions touch on both climate change mitigation and adaptation, providing more detailed guidance on topics such as assessing the significance of GHG emissions, analyzing energy impacts and efficiency, estimating vehicle emissions, and evaluating environmental risks in light of a changing and uncertain baseline. These amendments flesh out many of the provisions on climate change and energy that were first added to the CEQA Guidelines in 2010.

Read more »

January 2019 Updates to the Climate Case Charts


Posted on January 9th, 2019 by Tiffany Challe

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 117.

FEATURED CASE

With One Judge Dissenting, Ninth Circuit Permitted Federal Government Appeal in Young People’s Climate Case; Expedited Briefing Schedule Set 

On December 26, 2018, the Ninth Circuit Court of Appeals granted the federal government’s petition for permission to appeal an Oregon federal court’s decisions allowing constitutional climate change claims brought by a group of young people to proceed. Judge Friedland dissented from the order, writing that she believed the district court’s statements in its order certifying the decisions for interlocutory appeal prevented the Ninth Circuit from permitting the appeal because the district court “expressed that it does not actually think that the criteria for certification are satisfied.” Certification for interlocutory appeal requires (1) that the “order involves a controlling question of law as to which there is substantial ground for difference of opinion,” and (2) that “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Judge Friedland said it appeared that the court “felt compelled” to declare that certification requirements were satisfied due the Supreme Court’s statements that “[t]he breadth of [the] claims is striking, … and the justiciability of those claims presents substantial grounds for difference of opinion” and by the Ninth Circuit’s echoing of those statements. Judge Friedland noted that the decision whether to certify was left to the district court’s discretion, and that while the Ninth Circuit and the Supreme Court might be “as well-positioned as the district court” to consider the first “purely legal” requirement for certification, the district court “is far better positioned” to assess the second requirement, which concerns “how to resolve the litigation most efficiently.” In a footnote, Judge Friedland wrote that “[i]t is also concerning that allowing this appeal now effectively rewards the Government for its repeated efforts to bypass normal litigation procedures,” and that “[i]f anything has wasted judicial resources in this case,  it was those efforts.”

In a separate order, the Ninth Circuit denied as moot the government’s pending mandamus petition, which was filed after the Supreme Court denied its application for a stay. The Ninth Circuit also denied all other pending motions as moot, including the Juliana plaintiffs’ emergency motion for a lifting of stay previously granted by the Ninth Circuit (which the plaintiffs filed in both the mandamus proceeding and the permission-to-appeal proceeding).

At the district court, the plaintiffs’ December 5 motion for reconsideration of the court’s November 21 order staying the proceedings is still pending. In a reply filed on December 27 in support of the motion for reconsideration, the plaintiffs said they believed the stays granted by the district court and the Ninth Circuit had both been lifted due to the Ninth Circuit’s acceptance of the appeal and the denial of the mandamus petition. The plaintiffs contended that the district court should continue with certain proceedings, including supervision of “minimal outstanding discovery,” resolution of pretrial motions, hearing a motion for preliminary injunctive relief that the plaintiffs were preparing, and presiding at trial over particular questions that the plaintiffs said were not at issue in the pending appeal in the Ninth Circuit.

On January 7, the Ninth Circuit set an expedited briefing schedule for the government’s appeal, partially granting the plaintiffs’ motion to expedite the schedule. The government must file its opening brief by February 1, a response brief is due February 22, and an optional reply brief would be due March 8. The court denied as moot the government’s request that its obligation to respond to the motion to expedite be postponed due to the government shutdown. Juliana v. United States, No. 18-80176 (9th Cir. Dec. 26, 2018), No. 18-36082 (9th Cir. Jan. 7, 2019); No. 6:15-cv-01517 (D. Or.).

Read more »

By Michael Burger and Jessica Wentz

As you know, in Juliana v. United States twenty-one individual youth plaintiffs filed a lawsuit in federal district court in Oregon against the United States, the president, and various other federal officials and agencies, claiming that the “nation’s climate system” is critical to their rights to life, liberty, and property; that the federal government has violated their substantive due process rights by allowing fossil fuel production, consumption, and combustion at “dangerous levels;” and that the government has failed to fulfill its obligations under the public trust doctrine. As a remedy, the plaintiffs asked the court to compel the government to develop a plan to reduce carbon dioxide (CO2) emissions so that atmospheric CO2 concentrations will be no greater than 350 parts per million by 2100 – a science-based target consistent with the goal of limiting global warming to 1.5 degrees C.

The plaintiffs’ attorneys at Our Children’s Trust have dubbed their case the “trial of the century.” The U.S. Department of Justice, under both the Obama and Trump administrations, has argued that no trial should take place at all. The district court denied the defendants’ motion to dismiss, finding that the plaintiffs had raised colorable constitutional claims; after initial discovery had been conducted, the court denied (in significant part) defendants’ motions for summary judgment and judgment on the pleadings, affirming the earlier decision that plaintiffs raised valid claims and finding genuine issues of material fact that warrant a trial. But, after repeated attempts by the government to gain interlocutory appeal at the 9th Circuit and the Supreme Court, the district court’s decisions denying the U.S. government’s dispositive motions will now be reviewed by the 9th Circuit. It is possible that the trial will never happen.

And so the question lingers: What would the “trial of the century” look like? What are the key scientific questions that the parties would seek to answer? Where would the points of agreement and contention lie? And how would all of this factor into determinations on the plaintiffs’ standing to bring their suit, and the nature and extent of the government’s responsibility? As it turns out, the two sides have produced a documentary preview of the potential answer. In preparation for trial, the plaintiffs submitted over one thousand pages of expert reports detailing the fundamental science of climate change, observed and projected impacts, and the ways in which the U.S. government and the fossil fuel industry have contributed to the problem. In response, the defendants submitted hundreds of pages of their own expert reports contesting the reliability, soundness and validity of the plaintiffs’ submissions. And in response to that, the plaintiffs submitted a Notice of Supplemental Disputed Facts to the court, arguing that between these two sets of documents various questions of material fact were in dispute, requiring a trial. With all of that in hand, the district court thought, and still thinks, a trial is warranted. In the remainder of this post, we summarize the key proffers and points of contention, providing a glimpse of at least part of what these, or other, plaintiffs’ day in court might eventually entail.

Read more »

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