The comparative politics of courts and climate change

Disappointment with international efforts to find legal solutions to climate change has led to the emergence of a new generation of climate policy. This includes the emergence of courts as new ‘battlefields in climate fights’. Cross-national comparative analysis of the United Kingdom, Canada and Australia supplements research that has found that litigation plays an important governance gap-filling role in jurisdictions without comprehensive national-level climate change policies. The inductive research design identifies patterns in climate change litigation. The three countries illustrate the varieties of climate policies, and thus serve as a useful entry point for thinking more generally about the interplay between climate politics and legal mobilisation. To improve theoretical understandings of the role of courts in climate change politics, the range of litigants and the variety of cases brought to courts under the umbrella of the term ‘climate change litigation’ are identified

Litigation\u27s Role in the Path of U.S. Federal Climate Change Regulation: Implications of AEP v. Connecticut

This symposium analyzes the role of litigation in climate change regulation, with a particular focus on the U.S. Supreme Court\u27s June 2011 decision in American Electric Power Co. v. Connecticut ( AEP ). 1 This Essay adds to that conversation by exploring the significance of AEP for U.S. federal legal approaches to regulating climate change

BUSINESS CLIMATE OF FOOD FIRMS: A COMPARATIVE ANALYSIS OF PROBLEMS FACED BY FOOD MANUFACTURERS, WHOLESALERS, RETAILERS AND SERVICE INSTITUTIONS IN NEW JERSEY

This paper presents the problems facing food firms using information from focus groups of industry executives from New Jersey. The leading problems for food manufacturers are related to regulation, taxation, economic development, and high business costs. For food wholesalers the leading problems are transportation, regulation, labor quality, training and education, and public relations. Food retailers cite litigation and liability, high business costs, regulation, and insurance costs as leading problems. For food service firms, regulation, licensing and permits, labor quality and costs, and high business costs are the most pressing problems. Policy recommendations for improving the business climate are provided.Agribusiness,

Environmental Personhood and Standing for Nature: Examining the Colorado River case

As the planet faces the growing threat of climate change, environmental advocates are searching for alternative legal avenues to protect natural entities in the courts. In 2017, the Colorado River Ecosystem brought a lawsuit against the State of Colorado for violating its constitutional rights. The advocates behind this action were seeking to establish in federal court two doctrines that have made strides in other countries as part of the international Rights of Nature movement: environmental personhood and standing for nature. Environmental personhood would recognize natural entities as legal persons, endowing them with corresponding rights and duties under the law. Standing for nature would allow such entities to litigate their grievances on their own behalf in court. If courts were to recognize these doctrines, advocates would gain a significant tool to protect natural entities from ecological catastrophe. However, as an analytical reading of the pleadings in the Colorado River case illustrates, litigants must draft robust complaints that specifically address the standing requirements in order to make progress on this front. In Part I, this Note examines corporate personhood as a possible analogy for the development of environmental personhood. Part II discusses Article III standing as background for the justiciability standard environmental litigants must meet and analyzes animal standing as another comparative path. In Part III, the Note turns to the Colorado River lawsuit, critiques its pleadings, and suggests that a stronger litigation strategy would have increased the likelihood of surviving a justiciability challenge. Part IV recounts the international successes of the Rights of Nature movement to provide a global context for the Colorado River case. In Part V, the Note explores the issues around representation of natural entities in court and how some of these challenges might be navigated. Finally, this Note provides a few concluding thoughts on the path forward for environmental personhood and standing for nature

The Looming Battle for Control of Multidistrict Litigation in Historical Perspective

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in this Article is to shed light on the reasons the Multidistrict Litigation Act was constructed as it was and suggest that those engaged in the current debate ask, after becoming informed by available data, whether those reasons have lost any of their currency. I also offer some tenuous predictions about the path forward, recognizing that the prediction business is a dangerous one in the current political climate. First, I review the history to explain why the MDL framework was built without Rules Committee involvement. Then, I fast-forward to the present day and discuss briefly the nascent proposals to either amend the MDL statute or provide for Federal Rules of Civil Procedure for MDL. Finally, I conclude by assessing the current debate and make some suggestions as this debate winds its way forward. In 1968, the small cadre of judges who developed and fought for the MDL statute won the battle for procedural power. Today, fifty years later, the MDL statute continues to operate as they imagined. However, with success comes scrutiny, and what had been settled is now once again up for debate

Climate Change in the Supreme Court

In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider\u27s perspective on the choices that went into bringing and briefing the case. This Article is an edited version of the 20th Annual Natural Resources Law Institute Distinguished Lecture, delivered in the fall of 2007 at Lewis & Clark Law School

Resurrecting a Doctrine on its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group v. EPA

This Note considers how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (UARG) may have created a new opening for federal common law nuisance litigation as a means to address climate change. The Court’s earlier decision in American Electric Power v. Connecticut (AEP) held that federal nuisance claims targeting greenhouse gas emissions were completely displaced by the Clean Air Act. However, the holding in AEP was premised on the assumption that the Clean Air Act uniformly addressed greenhouse gases throughout the statute. UARG upended this assumption, holding that there are sections of the Clean Air Act that do not encompass greenhouse gases. Therefore, there may be sources of greenhouse gas emissions that are not regulated by the statute. Based on the displacement analysis employed in AEP, this would mean that the federal common law of nuisance would not be displaced as to these sources. The Clean Air Act’s coverage of the greenhouse gas emissions from one important category of sources—existing stationary sources—is an open question. Until recently, the D.C. Circuit appeared poised to answer at least part of this question in West Virginia v. EPA , the case challenging the Obama administration’s signature carbon dioxide regulation—the Clean Power Plan. The Clean Power Plan was premised on Section 111(d) of the Clean Air Act, and the D.C. Circuit’s en banc decision would have resolved whether and to what extent Section 111(d) can be used to regulate certain existing sources’ greenhouse gas emissions. However, the Trump administration has proposed to rescind the regulation, and it appears increasingly unlikely that the D.C. Circuit will issue a decision on the merits of the litigation. Therefore, it remains unclear whether Section 111(d) addresses existing sources’ greenhouse gas emissions. As this Note shows, the only other section of the Clean Air Act that might encompass these sources’ greenhouse gas emissions is Section 115, but this is far from certain. This Note argues that a federal common law nuisance suit should be leveraged in the face of this uncertainty. The result would be salutary, win or lose. On the one hand, the suit could result in a holding that either Section 111(d) or Section 115 encompasses greenhouse gases, which would mean that the federal common law would indeed be displaced. This holding could then be used to force the Environmental Protection Agency (EPA) to regulate existing sources’ greenhouse gas emissions under those sections. On the other hand, if the court finds that the Clean Air Act does not address existing sources’ greenhouse gas emissions, then these sources would be subject to substantial litigation risk. This exposure, in turn, could induce these sources to ask Congress to draft legislation that addresses their greenhouse gas emissions, thereby displacing any future common law claims. In the end, the desired outcome of the federal nuisance suit is the same: to catalyze comprehensive regulatory or legislative coverage of greenhouse gas emissions in the United States, which is imperative to avert the most devastating effects of climate change

Environmental Law: A Reevaluation of Federal Pre-Emption and the Commerce Clause

This Comment addresses how the concern of state and local governments to regain control over environmental regulation has resulted in a marked increase in conflicts with the commerce and supremacy clauses of the Constitution. Various tests have been used by the courts to determine violations of these Constitutional provisions where environmental objectives are sought through local laws. In the field of environmental litigation, traditional tests are constantly challenged to meet the changing moral climate of the nation. This Comment weighs the desire of local legislatures for more responsive environmental regulation against the federal goal of uniform regulation and unrestrained interstate commerce, concluding that the court must decide on a policy of pre-emption in order for the nation to know whether environmental reform will be spearheaded from the states or the federal government