Global Warming Litigation

February 16, 2005

Boalt Hall
University of California, Berkeley
 Global Warming Facts
• The 1990s were the warmest decade since 1861,
when thermometer records began.
• 1998 was the warmest year on record.
• The temperature increase of the 20th Century was
the largest of any century in the last 1,000 years.
• The ten hottest years since the beginning of the
last millennium have all occurred since 1983.

Law Offices of Matthew F. Pawa, P.C.

 Photo: NASA/
New York Times

Law Offices of Matthew F. Pawa, P.C.

Law Offices of Matthew F. Pawa, P.C. NAST
 No Scientific Debate re Causation

• Intergovernmental Panel on Climate

Change

• National Academy of Sciences

• American Geophysical Union

Law Offices of Matthew F. Pawa, P.C.

“There is scientific consensus on the reality of
anthropogenic climate. Climate scientists
have repeatedly tried to make this clear.
It is time for the the rest of us to listen.”
Science Magazine
December 3 2004

Law Offices of Matthew F. Pawa, P.C.

 American Electric Power
“There is not a lot of debate in the scientific
community that rising concentrations of
greenhouse gases are occurring and will
lead to climatic changes.”

Dale Heydlauff
AEP senior vice president for
government and environmental affairs

Law Offices of Matthew F. Pawa, P.C.

Law Offices of Matthew F. Pawa, P.C.
Privileged & Confidential
Attorney Work Product
Attorney-Client Communication

NERA
Law Offices of Matthew F. Pawa, P.C.
 The US Will Get Hotter

Law Offices of Matthew F. Pawa, P.C.

 Winter (DJF) and Summer (JJA) temperature change (degrees C)
for 2070-2099, relative to 1961-1990

Copyright ©2004 by the National Academy of Sciences

Law Offices of Matthew F. Pawa, P.C.
 Illinois Will Have the Climate of Texas

Law Offices of Matthew F. Pawa, P.C.

 Changes to California
Hydrology

Law Offices of Matthew F. Pawa, P.C.

 Ozone exceedance days & temperature

Law Offices of Matthew F. Pawa, P.C. NERA

 FEMA
Law Offices of Matthew F. Pawa, P.C.
 NERA
Law Offices of Matthew F. Pawa, P.C.
 NERA

Law Offices of Matthew F. Pawa, P.C.

 Other Impacts & Changes
• Wildfire in Western States
• Arctic Ice Cap Will Be Gone by 2100
• By 2100 Greenland Glacier Likely to be
Locked Into Complete Melting

Law Offices of Matthew F. Pawa, P.C.

 Greenhouse Gas Emissions by Sector

Privileged & Confidential

Attorney Work Product
Attorney-Client Communication

CERES-NRDC
Law Offices of Matthew F. Pawa, P.C.
 Power Sector Emissions Are Increasing
Rapidly

Privileged & Confidential CERES-NRDC

Attorney Work Product
Attorney-Client Communication
Law Offices of Matthew F. Pawa, P.C.
 CERES-NRDC

Law Offices of Matthew F. Pawa, P.C.

 CERES-NRDC

Law Offices of Matthew F. Pawa, P.C.

 CERES-NRDC
Law Offices of Matthew F. Pawa, P.C.
 CERES-NRDC

Law Offices of Matthew F. Pawa, P.C.

 Iowa Wind Farm

Law Offices of Matthew F. Pawa, P.C.

 CERES-NRDC
Law Offices of Matthew F. Pawa, P.C.
 Xcel Energy Inc.
“Give us a date, tell us how much we
need to cut, give us the flexibility to meet
the goals, and we'll get it done.”

Wayne H. Brunetti
CEO and Chairman
Xcel Energy Inc.

Law Offices of Matthew F. Pawa, P.C.

 Non-Litigation Options Have Failed

• US will not participate in Kyoto Protocol

• EPA ruled in 2003 that CO2 not covered by

Clean Air Act

Law Offices of Matthew F. Pawa, P.C.

 Plaintiff States’ Public Policy: Reduce GHGs

• California Automobile CO2 Law

• Northeastern States Regional CO2 Cap &
Trade
• Many Others

Problem: out-of-state sources

Law Offices of Matthew F. Pawa, P.C.

 Litigation Overview
• Federal Common Law of Public Nuisance
• State Common Law in the Alternative
• Defendants are Five Biggest CO2 Emitters
• States & NYC Filed Together in One
Federal Court
• Land Trusts Filed Parallel Complaint
• Injunctive Relief Only

Law Offices of Matthew F. Pawa, P.C.

 Defendants
• AEP Co., Southern Co., TVA, Xcel,
Cinergy

• Together emit ~ 650 million tons CO2/year

• 25 percent of US power sector CO2

• 10 percent of all US CO2

Law Offices of Matthew F. Pawa, P.C.

 Global Warming as a Public Nuisance
• Widespread harms to the general public
• Harms to public health, public comfort and
public safety
• Harms to natural resources and environment
• Harms are substantial
• Harms are long-term & irreversible
• Defendants know of the harm

Law Offices of Matthew F. Pawa, P.C.

 Federal Common Law of Public Nuisance

“The elements of a claim based on the

federal common law of nuisance are simply
that the defendant is carrying on an activity
that is causing an injury or significant threat
of injury to some cognizable interest of the
complainant.”
7th Circuit

Law Offices of Matthew F. Pawa, P.C.

 Defenses
• Preemption
• Primary Jurisdiction
• Foreign Relations Preemption
• Justiciability
• Remoteness
• Statute Limitations/Laches
• Unclean Hands
Privileged & Confidential
• Indispensable Parties Attorney Work Product
Attorney-Client Communication

Law Offices of Matthew F. Pawa, P.C.

 Futility/Redressability
• Joint Tortfeasors

• Reduction of Risk – Laidlaw

• Police Power

Privileged & Confidential

Attorney Work Product
Attorney-Client Communication

Law Offices of Matthew F. Pawa, P.C.

 Remedies
• Injunctive

• Declaratory as part of injunctive

• Not damages

Privileged & Confidential

Attorney Work Product
Attorney-Client Communication

Law Offices of Matthew F. Pawa, P.C.

Law Offices of Matthew F. Pawa, P.C.