Local Fracking Ban Struck Down

We typically focus on state court class actions when they reach the appellate level, but wanted to note an interesting decision at the trial court level.  An Ohio court has rejected a proposed class action by a group seeking to ban hydraulic fracturing in their community.  See Mothers Against Drilling in Our Neighborhood v. Ohio, No. CV-14-836899 (Ohio Ct. Com. Pl., 7/1/15).

Last December, community activists filed the class action against the state, the governor, and some fracking defendants, with the far-reaching argument that the portion of state law (Ohio Rev. Code § 1509) that gives the state Department of Natural Resources exclusive authority to permit, locate, space and regulate oil and gas wells, somehow violates plaintiffs' state constitutional right to local self-governance.  Plaintiffs' community had voted in favor of a city ordinance that bans fracking within the boundaries of their city.

The court granted defendants' motion for summary judgment, relying in large measure on a recent Ohio Supreme Court ruling in State v. Beck Energy Corp., Ohio, No. 2013-465, 2015 WL 687475 (Ohio, 2/17/15).  The ban on fracking was an invalid exercise of the city's home rule authority as it was preempted by Ohio Rev.C. 1509 as a matter of law.  In Beck, the state supreme court had noted that Chapter 1509 regulates oil and gas wells and production operations in Ohio. While it preserves certain limited powers for local governments, it gives the state government “sole and exclusive authority” to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state.The supreme court held that the Home Rule Amendment to the Ohio Constitution did not grant to a city the power to enforce its own permitting scheme atop the state system. 

More background on this local regulation debate can be found at Knight & Gullman, The Power Of State Interest: Preemption Of Local Fracking Ordinances In Home-Rule Cities, 28 Tul. Envtl. L.J. 297 (Summer, 2015).

Fracking Toxic Tort Case Dismissed Per Lone Pine Order

Readers will recall our earlier postings on "fracking"; natural gas from shale rock promises to provide cleaner, abundant energy for the U.S.  New drilling methods allow companies to tap into huge quantities of gas from shale rock. New estimates show that we have enough of this natural gas to last 100 years at current consumption rates.

The second biggest natural gas field in the world -- the Marcellus -- runs through your humble blogger's home state of Pennsylvania. The energy, jobs, taxes, and independence that tapping into this domestic resource will bring has spurred much interest and anticipation. The method to extract the gas from the rock is called hydraulic fracturing, or fracking, which like any technology, carries potential risks.

However, the potential drilling into the Marcellus Shale has caught the attention of the plaintiffs' bar, including personal injury and environmental class action lawyers. Plaintiffs lawyers are openly speculating about everything from gas leaks and fires, to environmental groundwater impacts, to the problems of large tanker trucks on small rural roadways.

We posted before about one such case already filed regarding another deposit, out West. See Strudley v. Antero Resources Corp., No. 2011CV2218 (Colo. Dist. Ct., Denver Cty., 3/24/11). Plaintiffs sued the gas exploration company and drilling equipment contractor, alleging that the hyrdrofracking contaminated their well water.

Earlier this month, the Colorado court dismissed the claim, relying on a  Lone Pine order, 2012 WL 1932470. The case arose from drilling and completing three natural gas wells in Silt, Colorado known as the Diemoz A well, the Fenno Ranch A well, and the Three Siblings A well. Construction of the Wells allegedly began on August 9, 2010. By January 10, 2011, plaintiffs had moved out of their home and away from Silt.

The central issue was whether defendants caused plaintiffs’ alleged injuries, which
plaintiffs vaguely described as “health injuries” from exposure to air and water contaminated by
defendants with “hazardous gases, chemicals and industrial wastes." Plaintiffs also alleged that
defendants had caused loss of use and enjoyment of their property, diminution in value of
property, loss of quality of life, and other damages. 

Cognizant of the significant discovery and cost burdens presented by a case of this nature, the court endeavored to invoke a more efficient procedure than we see in the standard case management order. The court required plaintiffs, before opening full two-way discovery, to make a prima facie showing of exposure and causation, a form of a Lone Pine order. See Lore v. Lone Pine Corp., No. L-33606-85 1986 WL 635707 (N.J. Sup. Ct. Nov. 18, 1986). The court further
determined that the prima facie showing requirement should  not prejudice plaintiffs because
ultimately they would need to come forward with this data and expert opinion on exposure and causation in order to establish their claims anyway.

The court also seemed influenced by the fact that the Colorado Oil and Gas Conservation Commission (“COGCC”) had conducted an investigation of the plaintiffs’ well water and had concluded that the water supply was not affected by oil and gas operations in the vicinity. Defendants also provided evidence to support their contention that the air emission-control
equipment at the Wells and prevailing wind patterns made it unlikely that plaintiffs or their
property were exposed to harmful levels of chemicals from defendants’ activities.

Specifically, the CMO required plaintiffs to identify the identity of each hazardous substance from defendants’ activities to which he or she was exposed and which caused him or
her injury;  evidence whether any and each of these substances can cause the type(s) of disease or illness that plaintiffs claimed (general causation);  the dose or other quantitative measurement of the concentration, timing and duration of his/her exposure to each substance; a medically recognized diagnosis of the specific disease or illness from which each plaintiff allegedly suffers or is at risk for such that medical monitoring is purportedly necessary; and a conclusion that such illness was in fact caused by such exposure (specific causation).

Plaintiffs were given 105 days to comply with the CMO. After that time, all plaintiff's expert could opine was that “sufficient environmental and health information exists to merit further substantive discovery.” Significantly, he offered no opinion as to whether exposure was a contributing factor to plaintiffs’ alleged injuries or illness. And the requested march towards further discovery
without some adequate proof of causation of injury is precisely what the CMO was meant to
curtail. The expert  suggested, at best, a very weak circumstantial causal connection between the Wells and plaintiffs’ injuries. In fact, he merely temporally associated plaintiff’s symptoms with the Wells being brought into production.

While the proffered evidence showed existence of certain low level gases and compounds in both the air and water of plaintiffs’ Silt home, there was neither sufficient data nor expert analysis stating with any level of probability that a causal connection does in fact exist between the alleged injuries and exposure to defendants drilling activities.  This is particularly telling, since Mr. Strudley complained of “nasal sinus congestion, nose bleeds at inconvenient times” and “an aversion to odors,” while he owns a painting business, and was frequently exposed to paint vapors -- offering a ready alternative explanation for his alleged respiratory symptoms.

The expert did not opine on whether any and each of the substances present in the air and water samples (taken after plaintiffs had moved out) can cause the type(s) of disease or illness that plaintiffs claimed (general causation). He did not discuss the dose or other quantitative measurement of the concentration, timing and duration of the alleged exposure to each substance. Finally, and perhaps most significantly,the expert did not even attempt to draw a conclusion that plaintiffs’ alleged injuries or illnesses were in fact caused by such exposure (specific causation).

The case reflects an effective, but also appropriate, use of the Lone Pine order. It may be a useful model for other fracking toxic tort suits, and is important as an illustration of a method to avoid long, expensive, and unnecessary discovery in such cases. 

 

Update BUT SEE Strudley v. Antero, Colo. Ct. App., No. 12CA1251, 7/3/13.

Ninth Circuit Hears Oral Argument in Climate Change Case

The Ninth Circuit recently heard oral argument in a potentially significant case raising climate change issues.  See Kivalina v. Exxon Mobil Corp., No. 09-17490 (9th Cir.)(oral argument  11/28/11).

We have posted on this case before, in which the village of about 400 people alleged that, as a result of global warming, the Arctic sea ice that protects the Kivalina coast from storms has been diminished, and that resulting erosion requires relocation of the residents to another village. (The town of Kivalina is located at the tip of a six-mile-long barrier reef, about 70 miles north of the Arctic Circle on Alaska's northwest coast.) Plaintiffs sought damages under federal common law nuisance, state nuisance, and civil conspiracy theories. They alleged that defendants were a major part of the cause of excessive emissions of carbon dioxide and other greenhouse gases, which plaintiffs claimed are causing the global warming.

The defendants properly noted that many of the questions raised by the plaintiffs in this suit were inherently political; there are no traditional judicial standards available to adjudicate such political issues. They also argued that plaintiffs lacked standing under Article III because the injury to the plaintiffs was not “fairly traceable” to the conduct of the defendants.

After the District Court dismissed the case, 663 F. Supp. 2d 863 (N.D. Cal. 2009), the U.S. Supreme Court rejected a global warming case brought by a number of states and land trusts that sought injunctive relief against utilities under the Clean Air Act.  See American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).  The Kivalina case is potentially significant as one of the first to apply and interpret the Supreme Court decision limiting climate change lawsuits under federal common law.
 

The plaintiffs in Kivalina argue that the AEP decision focused exclusively on injunctive relief and did not address damage claims under federal common law. Kivalina does not seek to set emissions caps. It seeks damages, they argued.  But that reading of the decision may overstate the importance of that fact; the Court focused on the issue of injunctive relief arguably because that was what was being sought by the states and land trusts.  Defendants argued that displacement of the federal common law applies to both injunctive and damages remedies.  When Congress crafted the regulatory framework establishing the Clean Air Act, it did not provide for any compensatory relief to an allegedly injured private party. Accordingly, a damages remedy should also be displaced.  Recognizing the nuisance theory in this context would enable a federal judge to substitute a different balancing of interests from the one made by the EPA, to which Congress assigned this function.


 

Supreme Court Decides Global Warming Case

In the third of our trilogy this week, let's take a look at the Supreme Court's decision in  American Electric Power Co. v. Connecticut, No. 10-174 (U.S. 6/20/11).

Readers may recall from our previous posts that in 2004, two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources.

Plaintiffs brought these actions under the federal common law of nuisance to force defendants to cap and then reduce their carbon dioxide emissions. The district court held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, the Second Circuit held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced. In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated.

An equally divided Court affirmed the Second Circuit’s exercise of jurisdiction. (Justice Sotomayor took no part in the consideration or decision of this case because of her participation in the 2d Circuit.). But the Court then held that  the Clean Air Act displaces any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. It was an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their alleged contribution to global warming -- because any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.

When Congress addresses a question previously governed by a decision rested on federal common law, the Court explained, the need for such an unusual exercise of law making by federal courts disappears. Legislative displacement of federal common law does not require the same sort of evidence of a clear and manifest Congressional purpose demanded for preemption of state law.  The Court thus held that the Clean Air Act, and the EPA actions it authorizes, displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Precedent made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act, and it was equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

If EPA did not set emissions limits for a particular pollutant or source of pollution, States and private parties could always petition for a rulemaking on the matter, and EPA’s response would be reviewable in federal court. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs were seeking by invoking federal common law. The Court saw no room for "a parallel track."

The plaintiffs argued that federal common law should not be displaced until EPA actually exercises its regulatory authority, i.e., until it sets standards governing emissions from the defendants’ plants. The Court disagreed. The critical point was that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law.

Interestingly, although the split-court did not change the jurisdictional ruling, the Court did note that the appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.  The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. It was "altogether fitting" that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. "The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions."  A statement that sounds alot like defendant's jurisdictional argument. 

The Court went on: federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges. 

Notwithstanding these disabilities, the plaintiffs proposed that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” and then decide what level of reduction is “practical, feasible and economically viable.” These determinations would be made for the defendants named in the litigation, and then similar suits could be mounted against thousands of other defendants fitting the plaintiffs' description “large contributors” to carbon-dioxide emissions.

Thus, since the decision turned on the displacement by Congressional designation of EPA as the prime decision-maker on regulation of emissions, if efforts underway in Congress to take away EPA's authority succeed, this may affect future global warming cases.  The Court also declined to decide the plaintiffs’ state-law claims, leaving that battle for another day.  Nevertheless, the issues of judicial competence and discretion highlighted by the Court may serve to deter federal judges from making environmental policy under any substantive law.  Also left open is whether a State may sue to abate any and all manner of pollution originating outside its borders.

Fracking Meets Medical Monitoring

We have posted before about medical monitoring claims, and recently noted how plaintiff attorneys have cast their eyes on hydraulic fracturing operations as a new source of revenue.

Now let's see how they combine: some Pennsylvania residents are suing various drilling companies over hydraulic fracturing operations, alleging that such operations have increased their risk of future disease such that they need medical monitoring.  Fiorentino v. Cabot Oil & Gas Co., et al., No. 3:09-cv-02284 (M.D. Pa.).  Plaintiffs seek a medical monitoring trust fund, paid for by the drillers.

The case is in the discovery stages, and defendants, logically, are seeking medical records of the plaintiffs.  Those not familiar with medical monitoring may wonder why medical records would be relevant regarding those plaintiffs who do not allege a traditional present physical injury but only the risk of future injury.  Indeed, plaintiffs earlier this month filed a motion seeking to block defendants from obtaining the medical records.  

However, defendants correctly point out in response that, in Pennsylvania, plaintiffs must prove all of the following elements to succeed on a claim for medical monitoring:
(1) exposure greater than the normal background levels;
(2) to a proven hazardous substance;
(3) caused by the defendant’s negligence;
(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;
(5) a monitoring procedure exists that makes the early detection of the disease possible;
(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and
(7) the prescribed monitoring regime is reasonable necessary according to contemporary scientific
principles.
Redland Soccer Club, Inc. v. Dep’t of Army & Dep’t of Def. of U.S., 696 A.2d 137, 195-96 (Pa. 1997).

At the least, medical records are relevant to the sixth element, namely that “the prescribed monitoring regime is different from that normally recommended in the absence of the exposure.” For example, a plaintiff might already be undergoing testing because of an existing medical condition, or already be a candidate for screening because of other risk factors in his life, such as occupational exposure to toxins or a family history of disease or genetic risk factors, all
requiring their own medical monitoring regime which may overlap the claimed monitoring regime for the alleged exposure in this case. Without medical records, a medical monitoring defendant is denied a fair opportunity to attack plaintiff's proof on this element and to show a plaintiff is not able to satisfy the sixth element of the Redland test -- and, therefore, not prove a claim for medical monitoring. See, e.g., Barnes v. American Tobacco Co., 984 F. Supp. 842, 871-72 (E.D. Pa. 1997).

While arising here in a discovery context, this issue also is relevant to class certification claims in medical monitoring cases, as the individualized nature of the medical monitoring remedy demands that each plaintiff be evaluated to determine whether the medical monitoring on account of the alleged exposure to the class called for by plaintiff experts is any different from the medical monitoring a plaintiff is or should be receiving because of the separate and existing risk factors currently facing an individual proposed class member.  Such an individual issue weighs heavily against class certification.

In any event, several courts have found that a defendant is entitled to the records. See O’Connor v. Boeing North American, Inc., 185 F.R.D. 272, 283 (C.D. Cal. 1999);  Cook v. Rockwell Int’l Corp., 147 F.R.D. 237, 242 (D. Colo. 1993).

Supreme Court Hears Oral Argument in Second Circuit "Global Warming" Case

We have posted before about the climate change or so-called global warming litigation. Last week, the Supreme Court heard oral argument in one of the seminal cases in this area, American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Readers will recall that the issues include whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the utility of defendants' conduct can be adjudicated through judicially discoverable and manageable standards, and whether they could ever be resolved without  the policy determinations clearly of a kind judges should not be making. (Justice Sotomayor, on the panel below, was recused.)

Extended time was given. The Court did not seem persuaded by the arguments of the defendants and the Justice Department that the case should be thrown out on procedural  grounds.  But on the merits, there appeared to be much skepticism about how a district court could ever proceed to a final decision in these kinds of cases.  Counsel for plaintiffs, the six states, had great difficulty  describing how to get there from here, how to have a manageable lawsuit against a small group of greenhouse gas emitters (among the billions of sources), and one focused on alleged  emission-reduction technology that they supposedly should have used. Counsel could muster not a single example of a similar suit that had proceeded to resolution.

Justice Ginsburg observed that the relief sought sounds like "the kind of thing EPA does..... You are setting up a District Judge as a kind of ‘super EPA.’”  And the rest of the Court's traditionally liberal wing seemed to suggest that this was an issue for the EPA.  Justice Kagan suggested that the suit overlapped the typical work of regulatory agencies; Justice Breyer asked an interesting hypothetical about whether the trial court could impose a remedy that was in essence a per-ton tax on carbon emissions, and assuming the finding was that this would be cost-effective, it would lead to substitution, it would "actually bring about a world without global warming." Plaintiffs answered in the negative.  But if there is no "power to enter that order, which could be proved to be extremely effective, and least possible harm to the consumer, why does [the court] have the power to enter the order you want?"

Justice Scalia wondered about the slippery slope, and if this suit could proceed against a handful of utilities, why couldn't the states sue every farmer who owned a cow, or every home that emitted from their home HVAC system?

Justice Alito took another approach to the difficulties of the litigation, noting that if a certain reduction in greenhouse gas emissions is ordered, that will increase the cost of electricity by a certain amount, and that will produce certain consequential effects. It will result in the loss of a certain number of jobs; it will mean that consumers will have less money to spend on other products and services; it will mean that some people will not be able to have air conditioning in the summer. That will have health effects on the elderly and people with breathing issues.  "How is the district judge -- what standard does the district judge have to decide those" questions?

Counsel for defendants correctly noted that the states were in essence asking a judge to perform a legislative and regulatory function, and balance a set of issues that is among the most complex, multifaceted, and consequential of any policy issues now before the country.

Chief Justice Roberts observed that a central issue when dealing with global warming is that there are costs and benefits on both sides, and a policy maker has to determine how much to readjust the world economy to address the global warming.  There are inevitable trade-offs. "I think that's a pretty big burden to impose on a district court judge."

Good news for the defendants: none of the eight justices appeared to voice any significant support for the plaintiffs' position.

 

Plaintiffs Bar Looking to Attack Exploration of Shale Gas

Many of our readers may have seen the recent cover story in Time noting how natural gas from shale rock promises to provide cleaner, abundant energy for the U.S.   While the fuels of the future were often said to be solar, wind, or nuclear (before Japan perhaps?), new drilling methods allow companies to tap into huge quantities of gas from shale rock. New estimates show that we have enough of this natural gas to last 100 years at current consumption rates.

The second biggest natural gas field in the world -- the Marcellus -- runs through your humble blogger's home state of Pennsylvania. The energy, jobs, taxes, and independence that tapping into this domestic resource will bring has spurred much interest and anticipation. The method to extract the gas from the rock is called hydraulic fracturing, which like any technology, carries potential risks.

As detailed in the Legal Intelligencer, however, the potential drilling into the Marcellus Shale has caught the attention of the plaintiffs' bar, including personal injury and environmental class action lawyers.  Plaintiffs lawyers are openly speculating about everything from gas leaks and fires,  to environmental groundwater impacts,  to the problems of large tanker trucks on small rural roadways.

Some plaintiff firms are reportedly trolling for clients, among local residents and workers on Marcellus Shale drill sites as well.

Out west, there has already been litigation filed. See Strudley v. Antero Resources Corp., No. 2011CV2218 (Colo. Dist. Ct., Denver Cty., 3/24/11).  Plaintiffs sued the gas exploration company and drilling equipment contractor, alleging that the hyrdrofracking contaminated their well water. Of more interest to our readers, perhaps, is the count for medical monitoring. Plaintiffs lawyers say they have other case to file, and are quoted as planning other medical monitoring class actions.

Medical monitoring is recognized under Pennsylvania law, and a handful of other states, and a plaintiff must prove:

1. exposure greater than normal background levels;

2. to a proven hazardous substance;

3. caused by the defendant's negligence;

4. as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;

5. a monitoring procedure exists that makes the early detection of the disease possible;

6. the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and

7. the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.

Redland Soccer Club v. Dep't of the Army, 548 Pa. 178, 696 A.2d 137, 145-46 (Pa.1997).

A number of these elements implicate individual issues that should defeat class certification under the predominance or cohesiveness analyses of Rule 23.  Nevertheless, it should come as no surprise to industry that this vital economic activity comes with litigation risks as well.



 

Showdown Over Regulation of Greenhouse Gas Looming in Congress

We have posted before about a number of issues related to greenhouse gas regulation and climate change litigation.  Now comes word that a potential showdown in the U.S. Senate over competing proposals to either strip the EPA of asserted authority to regulate greenhouse gas emissions or to delay the implementation of such rules has been put off until Senators return from their recess at the end of this month.

Earlier this month, Senate Republicans offered an amendment to the Small Business Reauthorization Act (S. 493) that would end all EPA authority to address emissions related to global climate change and block all current and future emissions rules. And the House Energy and Commerce Committee on March 15 approved an identical, stand-alone measure (H.R. 910), which we have posted on before.  The committee vote was along party lines. Also in play is an alternative offered by Sen. Jay Rockefeller (D-W.Va.) that would impose a two-year delay of enforcement of EPA's rules regarding power plants and other large emitting facilities. 

There is also speculation about other measures short of a complete ban on EPA regulation, including a  proposal to exempt the agricultural sector from EPA's greenhouse gas rules.   

All this may come to a head when the Senate reconvenes in April. Meanwhile in the litigation, New York Attorney General Eric T. Schneiderman filed a brief with the U.S. Supreme Court last week (on behalf of Respondents New York, Connecticut, California, Iowa, Rhode Island, Vermont, and the city of New York) asking the Court to  to recognize the right of states to sue various power companies as contributors to global warming. American Electric Power Co. v. Connecticut, No. 10-174 (U.S., brief filed 3/11/11).  The case is set for oral argument on April 19.

Legislation Proposed to Curb EPA Greenhouse Gas Authority

As we have noted in previous posts, one of the many important questions lurking in the climate change/global warning cases currently being litigated is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court. Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue? Judges in subsequent cases could set standards for other utilities or industries, or even conflicting standards for these same utilities. At the sane time, many observers question whether the current EPA regulatory direction offers sufficient protection for the jobs and the still shaky economy.

A number of bills have been introduced that could affect this equation. The Chair of the House Energy and Commerce Committee, Fred Upton (R-Mich.), last week spoke of draft legislation that would prohibit the Environmental Protection Agency from regulating greenhouse gas emissions.  The Energy Tax Prevention Act of 2011 would bar the EPA from regulating the so-called greenhouse gases under the Clean Air Act by precluding the agency from taking into consideration the emission of a greenhouse gas due to concerns regarding possible climate change.

Joining in support of this approach were Sen. James Inhofe (R-Okla.), the highest ranking Republican on the Senate Environment and Public Works Committee, and Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power.
Senator Inhofe reportedly plans to introduce a Senate version of the bill soon. 

Already in the Senate, Sen. Jay Rockefeller (D-W.Va.) re-introduced the EPA Regulations Suspension Act of 2011 (S. 231) which would delay for two years EPA's greenhouse gas emissions rules covering stationary sources.  Co-sponsors include Democrats: Sens. James Webb (Va.), Claire McCaskill (Mo.), Tim Johnson (S.D.), Joe Manchin (W.Va.), Ben Nelson (Neb.), and Kent Conrad (N.D.).  Rockefeller's version would apparently continue to allow EPA regulation of vehicle greenhouse gas emissions.  Wyoming Republican Senator John Barrasso introduced a more sweeping Senate bill (S. 228) that would reduce federal authority to regulate such emissions under not just the Clean Air Act, but also the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act.

The White House announced last year that the President would veto efforts to curb EPA authority over these greenhouse gas emissions. But many have expressed concern that the EPA regulations could hurt job growth, particularly for heavy manufacturing states.
 


 

Supreme Court Agrees to Hear Greenhouse Gas Case

The U.S. Supreme Court announced earlier this month that it will indeed hear the challenge to a court of appeals decision allowing several states to pursue a public nuisance suit against various utilities for their greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Readers may recall the issues from previous posts.  Two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources. Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court, 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005),  correctly held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, 582 F.3d 309 (2d Cir. 2009), the court of appeals held that the district court, had erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced. In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated.

AEP and three other power companies filed a petition for writ of certiorari Aug. 2, asking the Supreme Court to review the decision. The federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), urged the Supreme Court to overturn this decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. A dozen states  joined the Administration, and a variety of amici, in urging the Supreme Court to review the decision by the Second Circuit.

One central issue is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court.  Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue?  Judges in subsequent cases could set standards for other utilities or industries, or conflicting standards for these same utilities.
A second issue is whether controlling power plant emissions is a political question beyond the reach of the courts.

Note that Justice Sotomayor was a member of the Second Circuit when it heard oral arguments in Connecticut v. American Electric Power Co.  Thus it appears only eight justices will hear the case.
Justice Anthony Kennedy may turn out to be the pivotal vote in the case, based on his vote in Massachusetts v. EPA, 127 S. Ct. 1438 (2007).  The Supreme Court may not be eager to see a flood of common law litigation against greenhouse gas sources.

  

Update on Greenhouse Gas Emissions Reporting

The White House Office of Management and Budget has reportedly completed its review of the draft final rule to set greenhouse gas emissions reporting requirements for oil and natural gas wells and related equipment, as well as locations that produce fluorinated greenhouse gases. Completion of OMB review is typically the final step before a proposed rule is released by the Environmental Protection Agency for publication.

Readers may recall these rules were proposed in Spring, 2010, and would require oil and natural gas wells and related equipment that emit more than the equivalent of 25,000 metric tons per year of carbon dioxide to report their greenhouse gas emissions. EPA estimates that the proposal would apply to about 3,000 facilities, which would be required to begin collecting data on Jan. 1, 2011.  According to EPA, fluorinated gases account for about 2 percent of U.S. greenhouse gas emissions.

The proposed rule for oil and natural gas systems, like many related rules, seem to impose burdensome testing requirements on natural gas systems rather than calling for use of arguably more cost-effective estimating techniques.  Also controversial is EPA's effort to include smaller facilities by aggregating multiple facilities of a company in a region.

The Nov. 2 elections put Republicans in charge of the House and reduced the Democratic margin in the Senate; this may impact greenhouse gas regulation, and climate change legislation (such as cap and tax) is probably off the table for the next two years. Industry groups may seek to lobby for delay in EPA's greenhouse emissions rules through a variety of techniques, including via the EPA spending bill. Several top House Republicans have been quoted as saying such rules are a priority target.  On the Senate side, Sen. Jay Rockefeller (D-W.Va.) and a few other Democrats have favored a delay in implementing the EPA regulations for two years, so the new math there may also create road blocks.

Another aspect of this is seen in statements, such as those by Rep. Darrell Issa (R-Calif.), who may be in line to chair the House Oversight and Government Reform Committee; he has stated that he will call for oversight hearings on EPA activities, including in this area. Organizations such as the National Association of Manufacturers have argued that if the EPA is allowed to continue forward with an "overreaching agenda" on greenhouse gasses that puts additional and unnecessary burdens on manufacturers and drives up energy costs, it will cause economic harm and instill even more uncertainty into our already fragile economy, and will destroy jobs.

 

Multiple States Urge Reversal of Second Circuit Greenhouse Gas Decision

A dozen states have joined the Administration, and a variety of amici, in urging the Supreme Court to review a decision by the Second Circuit which would permit a suit against various utilities in federal court over their greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174, (U.S., amicus brief filed 9/3/10).

As we have posted, the Second Circuit held in Connecticut v. American Electric Power Co., 2009 WL 2996729 (2nd Cir. 9/21/09), that two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, could sue several electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing and will continue to cause serious harm affecting human health and natural resources. The plaintiffs' theory is that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to an alleged “clear scientific consensus” that global warming has already begun to alter the natural world, plaintiffs predicted that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

When thinking about "global climate" changes, MassTortDefense has always been sobered by the fact that humans have been trying to measure temperature consistently only since the1880s, during which time advocates think the world may have warmed by about +0.6 °C -- which is less than the margin of error on our ability to measure the Earth's temperature!

Anyway, plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. 406 F. Supp. 2d 265.

On appeal to the Second Circuit, in a lengthy opinion, the two judges (Justice, then-Judge Sotomayor had to drop out) held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced by other federal law.

In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which had held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated. The Supreme Court has further stated that the asserted injury must be actual or imminent, certainly impending and immediate --not remote, speculative, conjectural, or hypothetical. The court rejected defendants challenge that the contentions of future injury at some unspecified future date are not the kind of “imminent” injury required. The court also gave short shrift to the argument that plaintiffs could neither isolate which alleged harms will be caused by defendants' emissions, nor allege that such emissions would alone cause any future harms.

As we noted here, several defendants have filed a cert petition that raises the important, recurring question whether states and private plaintiffs have standing to seek, and whether federal common law provides authority for courts to impose, a non-statutory, judicially created regime for setting caps on greenhouse gas emissions based on vague and indeterminate nuisance concepts. It also asks the Court to decide whether judges, in addition to Congress and the EPA, may regulate greenhouse gas emissions at the behest of states and/or private parties and, if so, under what standards. Under the Second Circuit's ruling, a single judge could set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue. Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities.

This latest brief in support of review focuses on the issue whether claims seeking to cap defendants’ carbon dioxide emissions at “reasonable” levels, based on a court’s weighing of the potential risks of climate change against the socioeconomic utility of defendants’ conduct, could somehow be governed by “judicially discoverable and manageable standards” or could be resolved without initial policy determinations of a kind clearly for nonjudicial discretion.  These amici argue that given that every industry, and indeed every living mammal, constantly emits CO2, such emissions cannot simply be banned outright, no matter what the harm to the environment. Someone has to make a policy determination as to how much is acceptable and how much is too much. That someone should not be the federal judiciary. The point at which the volume of CO2 emissions justifies regulation admits of no discernible, judicially manageable principle.

While the Second Circuit called this an ordinary tort suit, this litigation seeks to transfer to the judiciary nearly standard-less authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country. Federal nuisance law is neither sufficiently developed nor sufficiently detailed to substitute for actual regulation. Thus, at stake is the financial health and security of numerous sectors of the economy. Indeed, virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case. The threat of litigation, and the indeterminate exposure to monetary and injunctive relief that it entails, could substantially impede and alter the future investment decisions and employment levels of all affected industries, and ultimately every sector of the economy.

The US government weighed in previously, taking a different approach, asking the Court not to accept the case for full review, but rather to simply vacate the decision and direct the Second Circuit to reconsider two issues: whether the plaintiffs have standing to bring the lawsuit, and whether recent actions by the EPA to regulate greenhouse gas emissions supplant the reason given by the Second Circuit for allowing the lawsuit to go forward. Since the initial decision below, EPA has issued final rules establishing reporting requirements for major emitters of greenhouse gases; issued a finding that greenhouse gas emissions from cars and light trucks endanger public health and welfare; and established new greenhouse gas emissions limits for cars and light trucks. In addition, EPA has signed off on a final rule requiring that additional categories of sources begin to track and report greenhouse gas emissions under EPA's earlier GHG reporting rule. The Second Circuit decision was seemingly predicated on the "now-obsolete conclusion" that EPA had not taken action to regulate carbon-dioxide emissions from stationary sources.

Joining on the latest brief were Indiana, Arkansas, Hawaii, Kansas, Kentucky, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Utah, and Wyoming.

U.S. Urges Reversal of 2d Circuit Global Warming Nuisance Decision

The federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), last week urged the Supreme Court to overturn a court of appeals decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. American Electric Power Co. v. Connecticut, No. 10-174 (U.S., brief filed 8/24/10).

Readers may recall from earlier posts that in Connecticut v. American Electric Power Co., 2009 WL 2996729 (2nd Cir. 9/21/09),  two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued several electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing and will continue to cause serious harm affecting human health and natural resources. The plaintiffs' theory is that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to an alleged “clear scientific consensus” that global warming has already begun to alter the natural world, plaintiffs predicted that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

When thinking about "global climate" changes, MassTortDefense has always been sobered by the fact that humans have been trying to measure temperature consistently only since the1880s, during which time advocates think the world may have warmed by about +0.6 °C -- which is less than the margin of error on our ability to measure the Earth's temperature!

Anyway, plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. 406 F. Supp. 2d 265.

On appeal to the Second Circuit, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, the two judges (Justice, then-Judge Sotomayor had to drop out) held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced by other federal law.

In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract.  Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated. The Supreme Court has further stated that the asserted injury must be actual or imminent, certainly impending and immediate --not remote, speculative, conjectural, or hypothetical. The court rejected defendants challenge that the contentions of future injury at some unspecified future date are not the kind of “imminent” injury required. The court also gave short shrift to the argument that plaintiffs could neither isolate which alleged harms will be caused by defendants' emissions, nor allege that such emissions would alone cause any future harms.

As we noted here, several defendants have filed a cert petition that raises the important, recurring question whether states and private plaintiffs have standing to seek, and whether federal common law provides authority for courts to impose, a non-statutory, judicially created regime for setting caps on greenhouse gas emissions based on vague and indeterminate nuisance concepts. It also asks the Court to decide whether judges, in addition to Congress and the EPA, may regulate greenhouse gas emissions at the behest of states and/or private parties and, if so, under what standards. Under the Second Circuit's ruling, a single judge could set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue. Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities.

While the Second Circuit called this an ordinary tort suit, this litigation seeks to transfer to the judiciary nearly standard-less authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country. Federal nuisance law is neither sufficiently developed nor sufficiently detailed to substitute for actual regulation. Thus, at stake is the financial health and security of numerous sectors of the economy. Indeed, virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case. The threat of litigation, and the indeterminate exposure to monetary and injunctive relief that it entails, could substantially impede and alter the future investment decisions and employment levels of all affected industries, and ultimately every sector of the economy.


Now the government brief takes a different approach, asking the Court not to accept the case for full review, but rather to simply vacate the decision and direct the Second Circuit to reconsider two issues: whether the plaintiffs have standing to bring the lawsuit, and whether recent actions by the EPA  to regulate greenhouse gas emissions supplant the reason given by the Second Circuit for allowing the lawsuit to go forward.  Since the initial decision below, EPA has issued final rules establishing reporting requirements for major emitters of greenhouse gases; issued a finding that greenhouse gas emissions from cars and light trucks endanger public health and welfare; and established new greenhouse gas emissions limits for cars and light trucks. In addition, EPA has signed off on a final rule requiring that additional categories of sources begin to track and report greenhouse gas emissions under EPA's earlier GHG reporting rule.  The Second Circuit decision was seemingly predicated on the "now-obsolete conclusion" that EPA had not taken action to regulate carbon-dioxide emissions from stationary sources. 

The TVA brief also argues that  that the lower court should dismiss the case based on “prudential standing,” a narrower ground than the case or controversy argument of the other defendants.


 

Defendants in Second Circuit Climate Change Case Seek Cert

Several electric power companies have asked the Supreme Court to review a Second Circuit ruling that Connecticut and several other states may seek greenhouse gas emissions reductions under a federal common law nuisance claim.  American Electric Power Co. v. Connecticut, No. 10-174 (U.S. 8/2/10). The petition for certiorari was filed by American Electric Power Co., Duke Energy Corp., Southern Co., and Xcel Energy Inc.

Readers may recall that in 2004, two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources.

Because of the procedural posture (motion to dismiss), the court did not really describe the other side of the story, but readers of MassTortDefense know that change is what the climate is always doing as a result of the planet's orbital eccentricities, axial wobbles, solar brightness changes, cosmic ray flux, and multiple other factors. There are numerous plausible terrestrial drivers of climate changes too. While global warming is a serious topic worthy of scientific study and political discussion, plaintiffs' alleged "consensus" on this issue ignores the fact that global mean temperature is only one part of climate, and may not even be the best metric. Moreover, the most important driver of the greenhouse effect are water vapor and clouds. Carbon dioxide is only about 0.038% of the atmosphere, and humans are responsible for only about 3.4% of carbon dioxide emitted to the atmosphere annually, the rest of it being natural.  When thinking about "global climate" changes, we have to be cognizant of the fact that humans have been trying to measure the temperature consistently only since the1880s, during which time even advocates think the world may have warmed by about +0.6 °C -- which is less than the margin of error on our ability to measure the Earth's temperature. 

Anyway, plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court correctly held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, the court of appeals held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced.  In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated. The Supreme Court has further stated that the asserted injury must be actual or imminent, certainly impending and immediate --not remote, speculative, conjectural, or hypothetical. The court of appeals rejected defendants challenge that these vague contentions of future injury at some unspecified future date are not the kind of “imminent” injury required. The court also gave short shrift to the argument that plaintiffs could neither isolate which alleged harms will be caused by defendants' emissions, nor allege that such emissions would alone cause any future harms. 

This petition raises the important, recurring question whether states and private plaintiffs have standing to seek, and whether federal common law provides authority for courts to impose, a non-statutory, judicially created regime for setting caps on greenhouse gas emissions based on vague and indeterminate nuisance concepts.  It also asks the Court to decide whether judges, in addition to Congress and the EPA, may regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards.  Under the Second Circuit's ruling, a single judge could set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue. Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities.

While the Second Circuit called this an ordinary tort suit, this litigation seeks to transfer to the judiciary nearly standardless authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country.  Thus, at stake is the financial health and security of numerous sectors of the economy. Indeed, virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case. The threat of litigation, and the indeterminate exposure to monetary and injunctive relief that it entails, could substantially impede and alter the future investment decisions and employment levels of all affected industries, and ultimately every sector of the economy.

EPA Issues Additional Greenhouse Gas Rules

Late last month, the Environmental Protection Agency signed off on a final rule requiring that  additional categories of sources begin to track and report greenhouse gas emissions under EPA's earlier GHG reporting rule.

Readers will recall the original rule, published in October, 2009, regulated 41 kinds of sources of methane, carbon dioxide, and nitrous oxide ,and other GHG emissions, requiring reporting when the rule becomes effective.  The new rule adds Magnesium Production, Underground Coal Mines, Industrial Wastewater Treatment, and Industrial Landfills, to the list of sources that have reporting requirements.  With this final rule the Agency has taken action on all outstanding source categories and subparts from the April 2009 original proposal for the greenhouse gas reporting program.

EPA promulgated the regulations to require monitoring and reporting of various major greenhouse gas emissions. In general, this national greenhouse gas reporting program is supposed to  provide EPA with accurate and timely GHG emissions data from facilities that emit 25,000 metric tons or more of carbon dioxide equivalent (CO2e) per year. This data is supposed to provide a better understanding of where GHGs are coming from and will guide development of the best possible policies and programs to reduce emissions, says the EPA.

Underground coal mines, magnesium production facilities, industrial waste landfills and industrial wastewater treatment facilities that meet the reporting threshold must begin monitoring GHG emissions on January 1, 2011 and must submit the first annual report to EPA by March 31, 2012. These GHG reporting rules are genearaly viewed as the first steps toward implementing GHG emissions limits and related climate change regulations.