Climate Change and Global Warming

The EPA asserts that global warming is caused by “increased emissions of greenhouse gases from human activities.” Id. The EPA identifies the following human activities as causes of climate change: burning fossil fuels, deforestation, reforestation, urbanization and desertification. In addition to those human activities, the EPA also states that scientists attribute climate change in part to natural processes. Id. Such natural processes include changes in the sun's intensity, changes in the Earth's orbit, and changes in ocean circulation.

While some natural processes contribute to climate change and global warming, science seems certain that greenhouse gases (“GHGs”) ' largely the result of human activity ' are a significant contributing factor. GHGs trap heat in the Earth's atmosphere, which increases the planet's temperature. The EPA states that “according to NOAA (National Oceanic Atmospheric Administration) and NASA data, the Earth's average surface temperature has increased by about 1.2 to 1.4˚ F in the last 100 years.” Id. It also states that “the eight warmest years on record (since 1850) have all occurred since 1998, with the warmest year being 2005.” Id.

These increased temperatures have had a ripple effect throughout the environment. As the EPA notes, they have caused or contributed to several observed effects of climate change, such as: shrinking glaciers, rising sea levels, changing ranges and distribution of animals, earlier blooming plants, an extended growing season, a shortening period of winter ice (i.e., winter ice that freezes later and thaws earlier), and thawing permafrost.

Although there is debate about the precise causes of climate change and global warming, the problems they create leave little room or time for debate. Most stakeholders believe that these problems must be addressed before irreparable and irreversible damage occurs.

International Diplomacy

International diplomacy must be at the forefront of the efforts to combat the problems of climate change and global warming. Because these problems face the entire world and not just certain countries, all nations must coordinate their efforts to create solutions. For instance, if the United States takes the necessary steps to reduce its GHG emissions, but other countries that emit large quantities of GHGs, such as China and India, do not follow suit, then the problems will persist. Without global cooperation, there will be an overabundance of GHGs released into the world's atmosphere.

Recognizing the need for international collaboration, 192 countries ratified the United Nations Framework Convention on Climate Change (“UNFCC”), which became effective on March 21, 1994. The signatory countries agreed to study the harmful effects of GHG emissions and to develop national plans for addressing those effects. More recently, 184 nations ratified the Kyoto Protocol, which is an addition to the UNFCC that became effective on Feb. 16, 2005. The Kyoto Protocol establishes binding targets for reducing GHG emissions from certain industrialized nations. While the UNFCC suggested that countries reduce their GHG emissions, the Kyoto Protocol requires them to do so. Nations that have agreed to abide by the Kyoto Protocol's emissions standards are free to adopt national methods for meeting these goals.

Manufacturers of products that contribute to GHG emissions, and are sold in international markets, should take note of what countries are signatories to the UNFCC and the Kyoto Protocol. If the countries in which such manufacturers do business are signatories, the manufacturers should closely track those countries' efforts to comply with the UNFCC or Kyoto Protocol standards. This may impact the manufacturers' ability to transact business within those countries.

Climate Change Litigation

Recently, courts have been confronted with lawsuits addressing the problems associated with climate change and global warming. These lawsuits involve allegations against public and private entities, including government agencies, power companies and product manufacturers. Generally, plaintiffs allege that they have been injured by the effects of climate change and seek redress from the government (e.g., under the Clean Air Act or National Environmental Policy Act) or from private industry (e.g., under a public nuisance or negligence theory of liability). While the legal issues surrounding climate change and global warming are largely undeveloped, the three most common issues in this young body of law have been standing, causation, and the political question doctrine.

The U.S. Supreme Court first addressed global warming in Massachusetts v. EPA, 549 U.S. 497 (2007). There, plaintiffs were 12 states, three cities, one territory and 13 organizations that brought suit against the EPA for not regulating motor vehicle emissions. Plaintiffs asserted that the emissions contributed to global warming. Defendant EPA argued that none of the plaintiffs had standing. However, in a five to four decision, the Court ruled that Massachusetts had standing because its coast had been injured by a rise in sea levels that resulted from global warming. Upon considering the case's merits, the Court held that GHGs are “pollutants” under the Clean Air Act and that the EPA was authorized to regulate them. Ultimately, the Court remanded the case to the EPA for it to determine whether the motor vehicle emissions endangered the public.

An early lawsuit that targeted private entities was Connecticut v. American Electric Power Co., 406 F. Supp.2d 265 (S.D.N.Y. 2005). There, eight states and New York City brought suit against five electric companies to abate what they alleged was the public nuisance of global warming. The defendants were five electric utility companies that plaintiffs alleged were the largest emitters of carbon dioxide in the United States. The district court dismissed the case pursuant to the political question doctrine. In other words, the court found that the issues raised by the plaintiffs' suit were non-justiciable political questions that were beyond the court's scope of authority. The political question doctrine allows a court to refuse to decide a case if the authority over the case's subject matter has been constitutionally assigned to another branch of the government or the court determines that there are no clear, justiciable standards by which to rule. See generally http://topics.law.cornell.edu/wex (choose “legal dictionary” and search for “political question doctrine”).

Similarly, California v. General Motors Corp., No. C06-05755MJJ, 2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007) was also dismissed pursuant to the political question doctrine. There, California sought damages against General Motors, Chrysler, Ford, Honda, Nissan, and Toyota for creating and contributing to global warming by manufacturing and placing automobiles into the stream of commerce. California alleged that the manufacture of automobiles that emit GHGs, contributed to the emission of carbon dioxide into the environment.

The problems associated with climate change and global warming have assumed a more prominent position in the public consciousness since the advent of these suits and others like them. Given the increased attention to environmental issues and the lack of clear law surrounding the problems related to climate change and global warming, it can be expected that plaintiffs will bring more lawsuits. As the science related to these problems develops and matures, plaintiffs may have sturdier ground on which to bring lawsuits against government agencies, businesses and product manufacturers.

Regulatory Agency Action

Regulatory agencies are commonly used to enforce and implement legislation. Congress can expressly grant authority to regulatory agencies when drafting and passing new legislation. Courts can also empower regulatory agencies to enforce emissions standards through courts' interpretations of existing legislation. For example, the Supreme Court, in Massachusetts v. EPA, authorized the EPA to regulate GHG emissions because the Court ruled that GHGs are “pollutants” under the Clean Air Act. Incidentally, pursuant to that authority the EPA released an Endangerment Finding, which stated that the six GHGs at issue in that case were an “endangerment” to the public health.

Now that environmental issues are becoming increasingly important to the public and elected officials, it is likely that regulatory agencies will be given more responsibility with respect to GHG emissions and other identified causes of climate change and global warming. Businesses and product manufacturers can endeavor to protect their interests through lobbying efforts and fostering good relationships with local, state, and national regulatory agencies.

Legislation

As courts have recognized, the problems of climate change and global warming are best addressed by the Legislative Branch. Cap and trade legislation is a currently controversial approach to mitigating the damage caused by climate change and global warming. Emissions trading or “cap and trade” is an approach by which economic incentives are provided to businesses and industries if they emit fewer GHGs or other regulated pollutants. It is called “cap and trade” because the legislation caps or limits the amounts of GHGs that can be emitted in a given period of time. If a company emits less than that limit in that period of time, then it is provided with vouchers or other tradeable instruments of value. In order to emit more than the proscribed limit in that given period of time, a company would need to provide the regulating body with the appropriate value of vouchers or other tradeable instruments. Theoretically, this creates a market for vouchers. Some businesses will need vouchers, while others will have vouchers to sell or trade.

In the absence of federal legislation over the past few years, states have attempted to pass cap and trade legislation addressing the problems of climate change and global warming. In 2006, California passed the California Global Warming Solutions Act, which established economic market-based methods to regulate GHG emissions. The Legislatures of Oregon and Washington also recently proposed cap and trade legislation, but neither state's legislature was able to pass a cap and trade bill.

Currently, Congress is considering various environmental measures, none more well known than H.R. 2454, also called the Markey-Waxman Bill. This bill narrowly passed the U.S. House of Representatives by a vote of 219 to 212 in June 2009. Most Democrats and eight Republicans voted to support the bill. The Senate received the bill in July 2009, but has taken no action to date. As presently constituted, Markey-Waxman will impose limits on the amount of GHGs that certain industrial and electricity-generating facilities can emit. It will also establish two separate cap-and-trade programs, one for GHGs and one for Hydrofluorcarbons (“HFCs”).

Under the Markey-Waxman Bill's cap-and-trade programs, the EPA will have the discretion to issue allowances (or credits) to emit GHGs and HFCs over the mandated limit. Without offering a detailed framework, the bill provides that emission allowances can be traded, borrowed, banked, auctioned, sold, exchanged, transferred, held, or retired. The bill also provides for investment in clean energy technology, improvements to the nation's power grid, and enhanced energy-saving standards for buildings, appliances, and industry.

Before its passage in the House of Representatives, the Markey-Waxman Bill was hotly debated. First and foremost, people bitterly disagreed over its cost. Proponents of the bill asserted that it would protect the American public from large increases in energy prices, while opponents stated that the bill's costs would be passed to the consumer through higher electricity bills, gas prices, and consumer goods prices. People also disagreed over the bill's effect on industry. Proponents argued that the investment of billions of dollars in new clean energy technologies would boost the economy and establish American dominance in a new green world economy, while opponents argued that the bill's regulations would force industry to leave the United States, which would damage the country's economy. People also disagreed over whether the bill would be effective. Proponents cited the projected decrease in GHG emissions that the bill would cause, while opponents argued that American decreases in GHG emissions without international cooperation and participation would do nothing to solve the problems of climate change and global warming because other nations would continue to emit GHGs.

Conclusion

As the debate surrounding the Markey-Waxman Bill shows, the problems created by climate change and global warming are divisive and complex. One thing is clear, however: The challenges posed by climate change will continue to play out on the international, judicial, regulatory, and legislative stages. If there is to be a solution to the problems caused by climate change and global warming, the approach must be interdisciplinary and multi-faceted. Meanwhile, product manufacturers should keep abreast of developments that affect their business.

Christopher P. DePhillips, a member of this newsletter's Board of Editors, is a Principal of Porzio, Bromberg & Newman, and a Member of the Complex Tort Practice Group and the Governmental Affairs Group. He concentrates his practice in the areas of product liability, toxic tort, pharmaceutical liability, general liability defense and governmental affairs/lobbying. Justin C. Hallberg, an Associate with the firm, is a Member of the Complex Tort Practice Group and Commercial Practice Group. He is also a Manager of Regulatory and Compliance Services for the firm's subsidiary, Porzio Pharmaceutical Services, LLC.

Climate change and global warming create numerous complex and unique problems that must be addressed by today's world leaders, and the legal profession as well. Unfortunately, there is no simple solution to many of these problems and, because they are newly emerging, there is no proven method for solving them. However, effectively addressing these problems will require awareness, creativity, and collaboration. The world's diplomats, politicians, business and industry leaders, scientists, lawyers and activists must work together to create achievable solutions. This article examines four avenues for addressing the problems of climate change and global warming: international diplomacy, litigation, regulatory agency action, and legislation. Various aspects of these avenues impact product manufacturers and, in turn, product liability litigation.

The Science

To inform this article's examination of the problems of climate change and global warming, it is important to provide a general overview of the scientific terms and concepts that will be discussed herein. According to information posted on the official Web site of the United States Environmental Protection Agency (“EPA”), the term “climate change” refers to “any significant change in measures of climate (such as temperature, precipitation, or wind), lasting for an extended period (decades or longer).” See http://www.epa.gov/climatechange/basicinfo.html. The EPA Web site defines “global warming” as “an average increase in the temperature of the atmosphere near the Earth's surface and in the troposphere, which can contribute to changes in global climate patterns.” Id.

The EPA asserts that global warming is caused by “increased emissions of greenhouse gases from human activities.” Id. The EPA identifies the following human activities as causes of climate change: burning fossil fuels, deforestation, reforestation, urbanization and desertification. In addition to those human activities, the EPA also states that scientists attribute climate change in part to natural processes. Id. Such natural processes include changes in the sun's intensity, changes in the Earth's orbit, and changes in ocean circulation.

While some natural processes contribute to climate change and global warming, science seems certain that greenhouse gases (“GHGs”) ' largely the result of human activity ' are a significant contributing factor. GHGs trap heat in the Earth's atmosphere, which increases the planet's temperature. The EPA states that “according to NOAA (National Oceanic Atmospheric Administration) and NASA data, the Earth's average surface temperature has increased by about 1.2 to 1.4˚ F in the last 100 years.” Id. It also states that “the eight warmest years on record (since 1850) have all occurred since 1998, with the warmest year being 2005.” Id.

These increased temperatures have had a ripple effect throughout the environment. As the EPA notes, they have caused or contributed to several observed effects of climate change, such as: shrinking glaciers, rising sea levels, changing ranges and distribution of animals, earlier blooming plants, an extended growing season, a shortening period of winter ice (i.e., winter ice that freezes later and thaws earlier), and thawing permafrost.

Although there is debate about the precise causes of climate change and global warming, the problems they create leave little room or time for debate. Most stakeholders believe that these problems must be addressed before irreparable and irreversible damage occurs.

International Diplomacy

International diplomacy must be at the forefront of the efforts to combat the problems of climate change and global warming. Because these problems face the entire world and not just certain countries, all nations must coordinate their efforts to create solutions. For instance, if the United States takes the necessary steps to reduce its GHG emissions, but other countries that emit large quantities of GHGs, such as China and India, do not follow suit, then the problems will persist. Without global cooperation, there will be an overabundance of GHGs released into the world's atmosphere.

Recognizing the need for international collaboration, 192 countries ratified the United Nations Framework Convention on Climate Change (“UNFCC”), which became effective on March 21, 1994. The signatory countries agreed to study the harmful effects of GHG emissions and to develop national plans for addressing those effects. More recently, 184 nations ratified the Kyoto Protocol, which is an addition to the UNFCC that became effective on Feb. 16, 2005. The Kyoto Protocol establishes binding targets for reducing GHG emissions from certain industrialized nations. While the UNFCC suggested that countries reduce their GHG emissions, the Kyoto Protocol requires them to do so. Nations that have agreed to abide by the Kyoto Protocol's emissions standards are free to adopt national methods for meeting these goals.

Manufacturers of products that contribute to GHG emissions, and are sold in international markets, should take note of what countries are signatories to the UNFCC and the Kyoto Protocol. If the countries in which such manufacturers do business are signatories, the manufacturers should closely track those countries' efforts to comply with the UNFCC or Kyoto Protocol standards. This may impact the manufacturers' ability to transact business within those countries.

Climate Change Litigation

Recently, courts have been confronted with lawsuits addressing the problems associated with climate change and global warming. These lawsuits involve allegations against public and private entities, including government agencies, power companies and product manufacturers. Generally, plaintiffs allege that they have been injured by the effects of climate change and seek redress from the government (e.g., under the Clean Air Act or National Environmental Policy Act) or from private industry (e.g., under a public nuisance or negligence theory of liability). While the legal issues surrounding climate change and global warming are largely undeveloped, the three most common issues in this young body of law have been standing, causation, and the political question doctrine.

The U.S. Supreme Court first addressed global warming in Massachusetts v. EPA , 549 U.S. 497 (2007). There, plaintiffs were 12 states, three cities, one territory and 13 organizations that brought suit against the EPA for not regulating motor vehicle emissions. Plaintiffs asserted that the emissions contributed to global warming. Defendant EPA argued that none of the plaintiffs had standing. However, in a five to four decision, the Court ruled that Massachusetts had standing because its coast had been injured by a rise in sea levels that resulted from global warming. Upon considering the case's merits, the Court held that GHGs are “pollutants” under the Clean Air Act and that the EPA was authorized to regulate them. Ultimately, the Court remanded the case to the EPA for it to determine whether the motor vehicle emissions endangered the public.

An early lawsuit that targeted private entities was Connecticut v. American Electric Power Co. , 406 F. Supp.2d 265 (S.D.N.Y. 2005). There, eight states and New York City brought suit against five electric companies to abate what they alleged was the public nuisance of global warming. The defendants were five electric utility companies that plaintiffs alleged were the largest emitters of carbon dioxide in the United States. The district court dismissed the case pursuant to the political question doctrine. In other words, the court found that the issues raised by the plaintiffs' suit were non-justiciable political questions that were beyond the court's scope of authority. The political question doctrine allows a court to refuse to decide a case if the authority over the case's subject matter has been constitutionally assigned to another branch of the government or the court determines that there are no clear, justiciable standards by which to rule. See generally http://topics.law.cornell.edu/wex (choose “legal dictionary” and search for “political question doctrine”).

Similarly, California v. General Motors Corp., No. C06-05755MJJ, 2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007) was also dismissed pursuant to the political question doctrine. There, California sought damages against General Motors, Chrysler, Ford, Honda, Nissan, and Toyota for creating and contributing to global warming by manufacturing and placing automobiles into the stream of commerce. California alleged that the manufacture of automobiles that emit GHGs, contributed to the emission of carbon dioxide into the environment.

The problems associated with climate change and global warming have assumed a more prominent position in the public consciousness since the advent of these suits and others like them. Given the increased attention to environmental issues and the lack of clear law surrounding the problems related to climate change and global warming, it can be expected that plaintiffs will bring more lawsuits. As the science related to these problems develops and matures, plaintiffs may have sturdier ground on which to bring lawsuits against government agencies, businesses and product manufacturers.

Regulatory Agency Action

Regulatory agencies are commonly used to enforce and implement legislation. Congress can expressly grant authority to regulatory agencies when drafting and passing new legislation. Courts can also empower regulatory agencies to enforce emissions standards through courts' interpretations of existing legislation. For example, the Supreme Court, in Massachusetts v. EPA, authorized the EPA to regulate GHG emissions because the Court ruled that GHGs are “pollutants” under the Clean Air Act. Incidentally, pursuant to that authority the EPA released an Endangerment Finding, which stated that the six GHGs at issue in that case were an “endangerment” to the public health.

Now that environmental issues are becoming increasingly important to the public and elected officials, it is likely that regulatory agencies will be given more responsibility with respect to GHG emissions and other identified causes of climate change and global warming. Businesses and product manufacturers can endeavor to protect their interests through lobbying efforts and fostering good relationships with local, state, and national regulatory agencies.

Legislation

As courts have recognized, the problems of climate change and global warming are best addressed by the Legislative Branch. Cap and trade legislation is a currently controversial approach to mitigating the damage caused by climate change and global warming. Emissions trading or “cap and trade” is an approach by which economic incentives are provided to businesses and industries if they emit fewer GHGs or other regulated pollutants. It is called “cap and trade” because the legislation caps or limits the amounts of GHGs that can be emitted in a given period of time. If a company emits less than that limit in that period of time, then it is provided with vouchers or other tradeable instruments of value. In order to emit more than the proscribed limit in that given period of time, a company would need to provide the regulating body with the appropriate value of vouchers or other tradeable instruments. Theoretically, this creates a market for vouchers. Some businesses will need vouchers, while others will have vouchers to sell or trade.

In the absence of federal legislation over the past few years, states have attempted to pass cap and trade legislation addressing the problems of climate change and global warming. In 2006, California passed the California Global Warming Solutions Act, which established economic market-based methods to regulate GHG emissions. The Legislatures of Oregon and Washington also recently proposed cap and trade legislation, but neither state's legislature was able to pass a cap and trade bill.

Currently, Congress is considering various environmental measures, none more well known than H.R. 2454, also called the Markey-Waxman Bill. This bill narrowly passed the U.S. House of Representatives by a vote of 219 to 212 in June 2009. Most Democrats and eight Republicans voted to support the bill. The Senate received the bill in July 2009, but has taken no action to date. As presently constituted, Markey-Waxman will impose limits on the amount of GHGs that certain industrial and electricity-generating facilities can emit. It will also establish two separate cap-and-trade programs, one for GHGs and one for Hydrofluorcarbons (“HFCs”).

Under the Markey-Waxman Bill's cap-and-trade programs, the EPA will have the discretion to issue allowances (or credits) to emit GHGs and HFCs over the mandated limit. Without offering a detailed framework, the bill provides that emission allowances can be traded, borrowed, banked, auctioned, sold, exchanged, transferred, held, or retired. The bill also provides for investment in clean energy technology, improvements to the nation's power grid, and enhanced energy-saving standards for buildings, appliances, and industry.

Before its passage in the House of Representatives, the Markey-Waxman Bill was hotly debated. First and foremost, people bitterly disagreed over its cost. Proponents of the bill asserted that it would protect the American public from large increases in energy prices, while opponents stated that the bill's costs would be passed to the consumer through higher electricity bills, gas prices, and consumer goods prices. People also disagreed over the bill's effect on industry. Proponents argued that the investment of billions of dollars in new clean energy technologies would boost the economy and establish American dominance in a new green world economy, while opponents argued that the bill's regulations would force industry to leave the United States, which would damage the country's economy. People also disagreed over whether the bill would be effective. Proponents cited the projected decrease in GHG emissions that the bill would cause, while opponents argued that American decreases in GHG emissions without international cooperation and participation would do nothing to solve the problems of climate change and global warming because other nations would continue to emit GHGs.

Conclusion

As the debate surrounding the Markey-Waxman Bill shows, the problems created by climate change and global warming are divisive and complex. One thing is clear, however: The challenges posed by climate change will continue to play out on the international, judicial, regulatory, and legislative stages. If there is to be a solution to the problems caused by climate change and global warming, the approach must be interdisciplinary and multi-faceted. Meanwhile, product manufacturers should keep abreast of developments that affect their business.

Christopher P. DePhillips, a member of this newsletter's Board of Editors, is a Principal of Porzio, Bromberg & Newman, and a Member of the Complex Tort Practice Group and the Governmental Affairs Group. He concentrates his practice in the areas of product liability, toxic tort, pharmaceutical liability, general liability defense and governmental affairs/lobbying. Justin C. Hallberg, an Associate with the firm, is a Member of the Complex Tort Practice Group and Commercial Practice Group. He is also a Manager of Regulatory and Compliance Services for the firm's subsidiary, Porzio Pharmaceutical Services, LLC.