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Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims

September 2010

Citation: ELR 10845

Author: Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso

Since 2005, numerous plaintiffs have attempted to hold both the energy industry and vehicle manufacturers liable for the damages they have experienced and will experience as a result of climate change. Proceeding under common-law theories, particularly nuisance, these plaintiffs generally allege that the defendants they sue are major contributors to greenhouse gas (GHG) emissions, which ultimately lead to climate change and a myriad of associated harms ranging from increased coastal erosion in Alaska and Massachusetts to decreased snowpack in California. While the U.S. Environmental Protection Agency's (EPA's) recent regulatory actions may preempt claims under federal common law, there is nothing in the Clean Air Act (CAA) that prevents future tort claims under state law. Consequently, common-law climate change litigation is likely to continue in the coming years. This Article addresses the challenges that common-law climate change plaintiffs will face in litigating their claims, particularly with respect to standing and justiciability, proof of causation, and apportionment of damages.

I. Getting Into Court: Standing and Justiciability

An initial hurdle for all climate change plaintiffs is the satisfaction of both the constitutional and prudential standing requirements. Plaintiffs must demonstrate both that they have met the minimum threshold requirements of Article III of the U.S. Constitution and that none of the prudential standing doctrines are implicated by their claims. Thus far, the majority of common-law climate change litigation in federal court has focused on this latter issue, as courts struggle to determine whether climate change claims present nonjusticible political questions. This section briefly explains the requirements to obtain standing and then summarizes the analysis of the courts that have considered common-law climate change claims.

Kevin Gaynor directs Vinson & Elkins' Washington, D.C., office's environmental practice and is CoChair of the firm's Climate Change practice. Ben Lippard is counsel and Maggie Peloso is an associate in the firm's environmental practice and a member of the firm's Climate Change practice.

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