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Climate Change Liability
 

Climate Change Liability

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Provides an overview of legal liability issues and claims based on climate change.

Provides an overview of legal liability issues and claims based on climate change.

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    Climate Change Liability Climate Change Liability Presentation Transcript

    • Climate Change Liability The Evolving Legal Framework October 14, 2008 Munich Re Climate Change and Liability Workshop Princeton, New Jersey
    • What We Know
      • Intergovernmental Panel on Climate Change (IPCC) 4th Assessment Report (2007):
      • “ Warming of the climate system is unequivoca l ”
      • Anthropogenic activities (historic and continuing) are significant contributors to climate change
      • Relative contribution of greenhouse gas (GHG) emissions from different regions of the world is shifting rapidly
    • What We Don’t Know
      • Contribution of individual, sector, and jurisdictional sources are diverse and difficult to assess
      • Impacts are diverse and hard to predict
        • Increased incidence and severity of hurricanes, typhoons, thunder and hailstorms
        • Potential erosion and flooding of coastal areas from changes in ocean elevation
        • Impacts to non-coastal areas from landslides, subsidence, wildfires
    • Range of Related Legal Liabilities
      • Application of existing laws and regulations at the federal and state levels
        • Federal Clean Air Act
        • National Environmentahttp://lh4.ggpht.com/_n-Y9S3Fy_dY/ReEf8Lgi4PI/AAAhttp://lh4.ggpht.com/_n-Y9S3Fy_dY/ReEf8Lgi4PI/AAAAAAAAADc/OWJQZvRzLKs/IMG_6214.JPGAAAAAADc/OWJQZvRzLKs/IMG_6214.JPGl Policy Act and state equivalents
      • Development of new regulatory strategies
        • Current proposals in Congress for “cap and trade” systems
        • California’s AB 32
      • Litigation
        • Standing and damages
      Climate Change Liability In the United States
      • U.S. failure to respond at the federal policy level
        • Reluctance to support international strategies
        • Failure to pursue domestic strategies
      • Application of existing laws and regulations
        • Federal Clean Air Act
        • National Environmental Policy Act and state equivalents
      • Development of new regulatory strategies
        • Recent federal proposals for “cap and trade”
        • California’s AB 32
    • Regulation of GHG Emissions Under the Federal Clean Air Act
      • Massachusetts v. U.S. Environmental Protection Agency
        • (U.S.Supreme Court - April 2007)
        • CO 2 in automobile emissions as an “air pollutant”
        • Standing of Massachusetts to sue - imminent jeopardy by rising sea levels that “have already begun to swallow Massachusetts’ coastal lands”
      • Massachusetts v. EPA II
        • Filed April 2, 2008
        • Seeks order directing EPA to issue endangerment determination and initiate rulemaking process
    • Federal Environmental Review Cases Federal Environmental Review Cases
      • Border Power Plant Working Group v. DOE , 260 F. Supp. 997 (S.D. Cal. 2003)
      • Mayo Foundation v. Surface Transportation Board , No. 06-031 (8 th Cir. 2006)
        • [ Mid-States Coalition for Progress v. Surface Transportation Board , 345 F.3d 520 (8 th Cir. 2003)]
      • Friends of the Earth v. Mosbacher
        • Mosbacher I ( Friends of the Earth v. Watson , No. 02-4106C, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005))
        • Mosbacher II ( Friends of Earth, Inc. v. Mosbacher , No. 02-04106C, 2007 WL 962955 (N.D. Cal. Apr. 30, 2007))
      National Environmental Policy Act (NEPA)
    • California Environmental Review Cases California Environmental Review Cases
    • California Environmental Quality Act (CEQA)
      • Strategy and recent settlements
      • County of San Bernardino (land use)
      • ConocoPhillips
        • Conduct energy efficiency audit at refinery
        • Conduct GHG audit of all California facilities
        • Pay $7 million to carbon offset fund
        • Pay additional $3 million for other mitigation measures
    • Liability under Common Law Litigation Theories Liability under Common Law Litigation Theories
      • Global warming as a “public nuisance”
      • Connecticut v. American Electric Power - GHG emissions from electric power generation facilities
        • Seeking injunction to abate GHG emissions with cap and subsequent percentage reductions
        • Dismissed - lack of subject matter jurisdiction (political question)
      • California v. General Motors - GHG emissions from motor vehicles
        • Federal and state law claims
        • Dismissed on September 17, 2007 - failure to state valid claims
    • Katrina Litigation Hurricane-Related Litigation
        • Comer v. Murphy Oil USA
          • Allegation: GHG conduct of defendant oil and coal companies, chemical manufacturers, and insurance companies result in GHG emissions that cause global warming and increase frequency and intensity of hurricanes
          • Claims for unjust enrichment, civil conspiracy, nuisance and trespass, negligence and fraudulent concealment
          • Alleged damages: property loss, loss of property use and enjoyment, loss of business and income, cleanup costs, emotional distress
          • August 30, 2007 - dismissed for lack of subject matter jurisdiction (non-justiciable political question - notice of appeal on September 17, 2007)
    • Proposed Federal Legislation Recent Federal Proposals
    • Proposed Federal Legislation
      • At least ten legislative proposals focused on climate change introduced in Congress during 2007
      • Lieberman-Warner-Boxer
      • “ Climate Stewardship and Innovation Act” (S.280) introduced on October 16, 2007
      • Senate Environment and Public Works Committee reported bill to full Senate on December 5, 2007, by a vote of 11-8
      • First bill mandating economy-wide reductions in greenhouse-gas emissions reported out of committee in either house
      • Bipartisan sponsorship: Lieberman (I-CT), Warner (R-VA), Casey (D-PA), Coleman (R-MN), Collins (R-ME), Dole (R-NC), Harkin (D-IA), Klobushar (D-MN)
      • Tabled – June 2008
    • State Legislation State and Regional Proposals
      • AB 32 – California’s Global Warming Solutions Act of 2006
      • First enforceable state-wide program to cap all GHG emission from major industries
      • Regulatory development underway now
        • Determination off 1990 baseline and 2020 emissions limit
        • January 1, 2009 - CARB to approve scoping plan for achieving 2020 emissions
        • January 1, 2010 - Implementation of early action reduction measures
        • January 1, 2011 - Adoption of limits and reduction measures
        • January 1, 2012 - Regulations go into effect
      • Other state and regional activities
    • Proposals for Climate Disclosure Rules Proposals for Climate Change Disclosure Rules
      • Currently voluntary program to disclose climate-related risk information
      • September 18, 2007 petition to SEC by state pension plans and institutional investors
        • Asks SEC to assess and disclose “material” financial risks from climate change
        • Material risks include financial impacts from emerging carbon-reducing regulations, extreme weather and other physical events, demand for low-carbon technologies and products
      • Related developments in Congress (hearings and proposed legislation)
    • Conclusion CONCLUSIONS
      • Kevin T. Haroff
      • Shook Hardy & Bacon LLP
      • 333 Bush Street, Suite 600
      • San Francisco CA 90104-2828
      • SF Office (415) 544-1961
      • SF Fax (415) 391-0281
      • Mobile (415) 336-6494
      • Email – kharoff@shb.com