Top Emitters of Greenhouse Gases in California, 2008

(in metric tons)

1 Chevron Refinery Richmond: 4 792 0521. Chevron Refinery, Richmond: 4,792,0522. Shell Oil Refinery, Martinez: 4,570,4753. BP Refinery, Carson: 4,504,2864 Ch R fi El S d 3 603 4464. Chevron Refinery, El Segundo: 3,603,4465. Dynegy Power Plant, Moss Landing: 2,962,1496. Exxon Refinery, Torrance: 2,852,374y7. Valero Refinery, Benicia: 2,796,0578. Tesoro Refinery, Martinez: 2,703,1459 Southern Calif Edison-Mountainview Power Plant9. Southern Calif. Edison Mountainview Power Plant, Redlands: 2,697,14210. La Paloma Power Plant, McKittrick: 2,544,398S C lif i Ai R B dSource: California Air Resources Board

Climate Change Nuisance Lawsuits:gMany Causes, Many Claims

Courts as Battlefields in Climate Fights

Erosion of the shoreline in Kivalina, Alaska, has led to a closely watched climate-change lawsuit.

By JOHN SCHWARTZPublished: January 26, 2010

Climate Change Litigation:Climate Change Litigation:It’s already here

• Already active trial docket nationally– Over 200 active matters and prior decisions– Types: broader, more various than expected

• NEPA, Endangered Species• Insurance coverage disputes

f• Most notable actions: federal common law nuisance actions

The Big ThreeThe Big Three

• Connecticut v. AEP (2d Cir.)– Eight AGs sued five power companies– Eight AGs sued five power companies– U.S. Supreme Court reversed 2d Cir. panel decision that

would have allowed lawsuit to proceed; now displaced

• Comer v. Murphy Oil Co. (5th Cir.)– Class action suit for Katrina property damages– Targets oil, coal, chemical and insurance companies– Fifth Circuit has dismissed, but in very odd fashion

• Native Village of Kivalina v. Exxon Mobil (9th Cir.)– District court in California dismissed as political question

On appeal to Ninth Circuit– On appeal to Ninth Circuit -- oral argument in Nov. 2011

Climate Change Liability -- KeyClimate Change Liability Key Thoughts and Themes Ct. v. AEP and Massachusetts v. EPA will continue to bear fruit

• Fate of nuisance suits may differ – Relief sought (injunctions vs. damages)– Claims and harms alleged – Types of plaintiffs bringing claimsyp p g g

• The battle to get into court is different than the battle within the courtCausation– Causation

– Effectiveness of remedy

• Tallies emissions backTallies emissions back to 1882

• Claims about 5 percent• Claims about 5 percent of historical global carbon emissions from ExxonExxon

• Alleges most releases occurred after climateoccurred after climate concerns first raised

Future Directions in Climate Change gLitigation

• State lawsuits are only just beginning

Adaptation of tactics and strategy from tobacco and• Adaptation of tactics and strategy from tobacco and asbestos litigation

– Collateral effects of certain claims (conspiracy)

– Focus on legislative solution

Questions?

Professor Tracy HesterUniversity of Houston Law Center

tdheste2@central.uh.edu713-743-1152 (office)( )