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Conversation About Climate and Courts

Thursday, July 21, 2016
Jay Austin

Jay Austin

Senior Attorney; Editor-in-Chief, Environmental Law Reporter®

While all eyes are on the challenge to EPA’s Clean Power Plan, currently being briefed in the D.C. Circuit, other forms of climate litigation are slowly gaining traction in courts around the country. In Oregon, where I live, a group of young plaintiffs have invoked the “atmospheric trust” theory in their attempt to compel the state government to regulate greenhouse gases; similar state-law actions are pending in Colorado, Massachusetts, Pennsylvania, and Washington. The Oregon youths have brought an even more ambitious suit against the entire federal government, alleging that its long history of climate change inaction amounts to a violation of their fundamental constitutional rights. Though novel, that claim has prompted industry groups to formally intervene in the case. The plaintiffs received a sympathetic initial ruling from a U.S. Magistrate Judge, and the case will be heard in District Court on September 13.

Meanwhile, new life has been breathed into the idea of direct litigation against greenhouse-gas emitters. While the U.S. Supreme Court’s 2011 ruling in American Electric Power Co. v. Connecticut effectively halted most public nuisance and common-law claims, more recent (and controversial) investigations by the attorney generals of Massachusetts and New York are sifting through companies’ public and internal statements and exploring legal theories based on investor disclosure or even potential fraud. These still face significant issues of proof, causation, and appropriate remedy, but also are benefiting from new document discoveries and advances in climate science.

On June 10, I had the pleasure of appearing on Minnesota Public Radio’s “Climate Cast” program to discuss these trends with MPR chief meteorologist Paul Huttner and a panel of experts. Paul is a dedicated journalist who does a laudable job of bringing the broader legal and policy debate surrounding climate change to his audience. You can listen to a recording of our conversation here

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