Climate Change Litigation and Legislation Update

Although we haven't posted about it much, a number of environmental groups, states and private citizens have brought litigation, seeking to turn climate change issues into mass torts. Thus far, the litigation, which has focused principally on greenhouse gas emissions, has not been very successful. Unlike typical mass tort litigation, some of these plaintiffs admit that part of the goal of the cases is to encourage Congress to act on legislation (leading to regulation) that would achieve some of the same goals.

One example is the mass tort suit filed in 2008 by residents of a small Alaskan village against two dozen energy companies, claiming that carbon dioxide and other greenhouse gases have left their town uninhabitable. Native Village of Kialina v. Exxon Mobil Corp., et al., 2008 WL 2951742 (C.D.Cal.)

Now comes word that a number of studies will be released in the near future, examining the potential impact of pending climate-change legislation, including its effect on food prices. Under the proposed climate-change legislation, a carbon offset, or credit, can be generated when a company reduces the amount of greenhouse gas emitted into the atmosphere. The resulting offsets can then be sold to other polluters or used by the producer to reduce its overall emission totals. Certain companies would have to pay penalties if they emit more than allowed without offsets.The House passed a bill, the American Clean Energy and Security Act of 2009, in late June. There is concern the bill doesn't provide sufficient incentives for food and agricultural companies to receive and generate carbon credits to offset their carbon emissions. The Senate is expected to take up its own climate bill next month. Critics say that the House bill also risks an increase in food and feed prices, and a reduction in the international competitiveness of U.S. businesses.

Again, the legislation and any resulting regulation may have a significant impact on whether the courts will breathe life into mass tort litigation relating to alleged climate change issues.

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