Climate Change Litigation:  Current Trends and Future Outlook
Articles,  Blog

Climate Change Litigation: Current Trends and Future Outlook

– Howdy – Howdy All right guys, if you were looking
for the Federalist Society, you have found it. If you were looking for
Pei Wei, you have found it. If you were looking for
climate change litigation, you have found it. And if you were looking for
an interesting conversation between Mrs. Gale Norton
and Professor Gabriel Eckstein, you have also found it. So we appreciate you
guys coming today. I’m sorry, I’ll beat myself to the howdy. There you go. Just some real
quick announcements, because I know you guys didn’t
come here to hear me talk. I just want to let you know
we will have two open positions for the spring. So if you want to get involved
with Federalist Society, now is your time. We will have an
open 1L position. I know I mentioned
it last meeting. And then our vice president has
got a great opportunity in DC, so he is going to
take up on that. So we will have that
open spot as well. That means that we will have
to have a meeting at some point this semester. So there’s not a
lot of time left. It may happen during dead week. I’m sorry. We’ll send out doodle poll. On that note, make sure
that you have signed up for your national membership
it’s $5 people, $5. So sign up for your
national membership. If you’re not on the
national membership roll, you can’t be on the board. And then make sure you sign
up on the sign up sheet, so you’ll to be to get the doodle poll and
all the information about that. And then we have to do a big
shout out to our co-sponsors. We’ve got the Energy Law
Association in the house, so thank you guys for
co-sponsoring today. We’ve got the 2019 Energy Law
Symposium coming up February 21 and 22. It’s on [INAUDIBLE] for
the Energy Law Association. So we’d like input
on career panels, who’d you’d like to see,
what you’d like to see. Reach out to Dr. Felix
Mormann on that issue. And if you want to be
a symposium fellow, just shoot him and email, four
to five sentences about why you want to be involved in that. And I can tell you this much. I did the airport
runs last year, and that’s a good
time to be able to sit and talk with some of the
speakers that are coming in. You get one-on-one
time with these folks that you wouldn’t normally get. It’s an opportunity
to make a connection. And then also, of
course, our co-sponsors, we couldn’t to do
an event like this without have our co-sponsors,
the National Resource Assistance Program, which
of course provided to us the sign
for the panel today. So thank you so much
for our co-sponsors. Just a little bit
of housekeeping. This is how it’s going
to go down today. We will have Ms. Norton
speak for about 25 minutes giving commentary. Professor Eckstein will
have the opportunity to follow up, about 15
minutes follow-up commentary. And then we want to leave you
guys 15 minutes for questions and answers. And I know I say
this every time, and I really probably don’t
have to but just keep in mind no one here on
this panel will ever shy away from a tough question. That’s what we’re here for to
discuss, debate, and decide. But also keep in mind
that Aggie attorneys show Aggie hospitality. So when Ms. Norton goes
back to Denver, Colorado, we want her going back saying,
“Man, those Aggies were awesome.” And the cool stuff
is hard questions don’t have to be hostile. So just make sure when
you’re those tough questions that you’re still
building relationships with people on the panel. And then because you guys don’t
want to hear me talk any more, we have our esteemed Dean Ahdieh
who came to us in July of 2018. There are super awesome
things about him. They’re up on the screen. I don’t need to repeat them. I’m going to give
it over to him. [APPLAUSE] – Howdy. – Howdy. – It’s my pleasure to be here. I will say particularly for this
event, as is [? conclusive, ?] for a number of reasons. I think it was
actually my first event that I did as a law professor
at every law school event, there was a federal
side events, which I had the role of the punching boy– the Gabriel Eckstein Roll them back
to attempt to respond to the distinguished visitor,
but in that case, I’m sure, Secretary Norton
will not do this. The speaker completely
changed the topic. So I had my whole
prepared remarks. This was about his book. And then he delivered
remarks that had nothing to do with his book. And so I’m sitting there as the
remarks are being delivered, and I was quickly trying to
come up with some new ideas. It’s a strategy. Come up with some
ideas on the fly. And then afterwards, there
was a whiteboard in there. And I remember, to
this day, I went up– this is before phones. Otherwise I would have
taken a picture of it. And so I got up there, and
I was in somewhat of a daze. I started delivering some
seemingly responsive remarks which involved lots of
charts, graphs, and whatever about federalism on
the board that I drew, and so on and so forth. And then again still, somewhat
in a daze, I sat down. And when I sat down at
my seat, the speaker got back up to do his
rebuttal of sorts. And he said, “I have
to say I agree. I feel like I agree with
everything that Professor Ahdieh said.” And I stood up. I said “Well then,
clearly I failed.” This is the Federalist Society. If I had one job, it
was to be disagreeable. [LAUGHTER] So anyway, I have to say,
the format of the Federalist Society program. But really, the commitment
to the Federal Society generally to this kind of
discourse and engagement, challenging engagement
around these issues, really is incredibly impressive. And I have to say,
it’s a high bar. For all of us, when
you agree, whether you agree with any given
case, or you disagree, the model of challenging
discourse, and challenging ideas, and challenging
your assumptions, is one that we
should all aspire to, in terms of being great lawyers. And one that I think is very
much in the Aggie spirit. It also is a great
pleasure, of course, to introduce Gale Norton
as our speaker today. She is currently the
president of Norton Regulatory Strategies. She has served of late as a
senior advisor for Clean Range Ventures, and on the boards
of the Federalist Society, of course, as well as with
the Reagan Alumni Association, University of Colorado’s
Renewable and Sustainable Energy Institute. We, of course, know
that she served as Secretary of the Interior
during a tumultuous period from 2001 to 2006. Prior to that, she
was the Attorney General of Colorado, which as
attorney general jobs go, was also an incredibly
interesting, and important, and challenging task,
given the complexities that state navigates. She served as general counsel
for a Royal Dutch Shell unconventional oil. Following her service as
Secretary of the Interior, she’s been in private
practice otherwise in various government
positions, a national fellow of the state the Hoover
Institution at Stanford, as well as a senior attorney
for the Mountain States Legal Foundation. She did her studies at
the University of Denver, and again, is probably
one of the most important and influential voices
and thinkers on the issues that we are going to
be talking about today. So we’re so honored and pleased
to have her here with us. Please welcome Secretary Norton. [APPLAUSE] – Thank you very
much, and let me first say it’s great to hear
somebody start by saying “Howdy.” That is something
I’ve said all my life, and now I’m thinking
back and I realized why. My father grew up
in Texas, and went to Texas A&M for a short
time as an undergraduate. World War II sort of
intervened in that, and he went off
into the military, became an aircraft mechanic,
and never looked back. So my experience with Texas
A&M, but I was very pleased when I received the
invitation to speak here. I have long been active
with the Federalist Society. In fact, I knew the founders
of the Federalist Society back when they
were law students. I was a very young lawyer
myself, and went to a meeting at the University of Chicago,
and we were sitting around the table in the cafeteria
talking with this excited group of students. I never dreamed that years and
years later, that organization would still be
active, and it would have become such an
influential organization. I think a very important
key to its success is that the Federalist
Society never tried to say, “This
is what we think, you have to think this way.” It has always been
an organization that sponsored and welcomed
debate, and discussion, and examination of issues
from all perspectives. So I am very
pleased that we will continue that tradition today. I would like to talk
today about cases that are attempting to address
the issue of climate change in a few different ways. I will give you fair warning. My perspective on this is
because as attorney general of Colorado, I was
one of the negotiators of the national
tobacco settlement. The whole stream of
tobacco litigation is something that the
attorneys involved in dealing with
climate lawsuits tend to use as a model for why
they are pursuing litigation on climate, and why
that is going to be successful, in their views. So I’ll discuss some of the
pros and cons of those things, and some of the difficulties
about why climate issues may not be nearly as amenable
to judicial involvement, and judicial resolution,
as the tobacco cases were. But let me say that there are
three types of recent climate change cases. The first are those
that have been filed by local governments,
by cities, counties, in many cases, states, that
are raising issues that are essentially tort-type issues. It is a public nuisance. There is truth in advertising. It’s the whole line of things
that go along with a tort approach to litigation. I’ll come back to
those, because those will be my primary focus today. The second type of
case is represented by someone who just filed by
the New York Attorney General’s Office, which is [INAUDIBLE] by
them, that looks at securities law, and says that the energy
companies are not being truthful with their
investors in revealing what the impacts of climate
change are going to be. And showing that they have
accurately portrayed climate impacts in their documents. So that’s another type,
one that I don’t think we’ll get into very much today. And the third type
is represented by a case called Juliana and
that is called the children’s lawsuit on climate. And there are several
filed in other states. Essentially that raises
a public trust doctrine, and he says that, with your
experience and water law, you certainly know about
public trust doctrine, that essentially tries to raise a
constitutional-type argument on the right to a
healthy environment, the right to a sustainable,
long-term future that is allegedly being interfered
with by government policy on climate. I’ll begin by describing
the lawsuit brought by the municipalities, the
city and county of Boulder were plaintiffs
in a lawsuit that was filed this year alleging
that the tobacco, excuse me, not tobacco, the energy
companies Exxon and Suncor were causing damage to Boulder
because of climate change impacts. This follows along
with some suits that have been filed by coastal
communities, Oakland, San Francisco, San
Mateo, New York City, that are sort of the raise in water
level because of global climate change, is going to have
an impact on the cities. The cities are
saying they are going to have to spend money to
respond to changes caused to climate by the clients. In the Boulder case,
it is more flooding. It is the dryness and the effect
on the forests surrounding. It’s going to lead
to more forest fires, and it’s going to
have more of an impact on tourism, because
the ski industry might be affected by climate change. So there’s a whole variety of
different arguments about what the impacts are likely to be. In the coastal communities,
they are talking about, again, flooding, the need
to perhaps build seawalls at some point, all
kinds of different things that are going to be
necessary in the future to adapt to climate impacts. Those cases are being
filed in state court. And with one notable
exception, the defendants have all tended to move those
cases to the federal court, and the cases have
stayed in federal court, have been the defendant
companies, in fact, move them to federal court
because of federal precedent that has thrown out
climate litigation. In essence, the federal courts
have looked at the difficulty, in terms of separation
of powers, then wading into the issue of
climate change. When we’re trying to
litigate in an area that has an existing statutory
structure, whether it’s the Endangered Species Act, or NEPA, or
clean air and clean water laws, the courts are
essentially in a role of enforcing what
Congress has decided, and what the executive
branch has regulated. In the area of
climate, we don’t have that same kind of a structure. And so the cases are going in
not as administrative cases, but in something that looks much
more akin to the regular tort sort of lawsuit. I’m very familiar with
environmental litigation, and this is somewhat different
than the usual environmental litigation. Most of the time, it’s in
an administrative context, but the idea of challenging
something, where there are existing statutory standards. When I was at the Department of
the Interior, everything we did triggered a lawsuit. You were responsible for
millions of acres of forest. When the forest gets too dense
because we’ve suppressed forest fires for so long, the only way
to thin that out and restore it to something more
natural is either through controlled burns, or
through going in with chainsaws and just cutting down trees. Whenever we did that, whether
it’s 100 acres, a tiny fraction, we’d still get sued. And so we came to
joke among ourselves that the Department of
the Interior getting a notice of intent
to sue is about as eventful as a
letter addressed to occupant. So I’m very familiar with
that kind of litigation. There is a new angle
on these cases that is, to me, very troublesome. And that is the emergence of
contingency attorneys, who are using this as a way of,
somewhere down the line, recovering attorneys fees. In the tobacco
litigation, we had a series of lawsuits
that were brought by each of the attorneys
general of the states, there were some that
were set up early on. But the bulk of
the lawsuits were settled in later round,
which I was involved in. In those lawsuits,
most of the states, realizing that this was going
to be complicated litigation, expensive litigation,
not a whole lot of money in the state
budget to pay for it, signed on with
contingency attorneys. And those attorneys
were supposed to get up to 25% of the recovery
that the states brought in against the tobacco companies. Well, I was a little
bit stubborn and leery of that approach to
things, even back before the tobacco litigation. And so the state of
Colorado did it in-house. I spent a whole lot
of time on airplanes going to Washington DC,
and Manhattan, trying to settle the litigation
that was ultimately filed. Among the attorneys
who were involved in that final settlement
negotiations taking place in Manhattan, painted a picture. There were about
a dozen attorneys for the state side of
things, and a dozen attorneys for the tobacco side things. The attorneys for the
states were nine of us who were employed by state
governments, mostly attorneys general, but a few top deputies,
and three private attorneys. Two of the private attorneys
played a very important role. They were very practically
involved [INAUDIBLE] about the litigation. One of the other attorneys,
the other private attorney, only spoke out on the
issue of attorneys fees. He never said anything. He had spent months sitting
in a conference room, never saying anything unless
it was about attorneys fees. That settlement
ultimately had a price tag of hundreds of
billions of dollars. It’s one that gets
paid out over time. So it’s a little tough
to say exactly what the total amount is. But it is in the
hundreds of millions. The attorneys who were involved
sitting around that conference table, those of us who
were employed by the state, we didn’t even get overtime. Those who were employed
on the private side brought in billions of
dollars for their firms. And I’m talking
collectively, nationally. A lot of the law firms had
several billion dollars in fees that were
awarded to that law firm. Would you be a
rational person to say I want to go out and
get those kinds of fees. And so some of the
same people who were involved in the tobacco
litigation, and some others, have now signed up
for 20, 25, I think 23% is that the highest
amount that they are looking to recover in
climate change damages. When you started looking at
how much is New York City going to have to do to mitigate
climate issues in the future, and start adding
all those things up, well that can come to
a pretty hefty sum. And so you have attorneys
who are going out and trying to sign up other communities. They are apparently
working in Florida to get some [INAUDIBLE] signed
up with a profit motive that’s a lot different from the usual
environmental litigation. I don’t blame people for
capitalist tendencies. That’s something
I usually value. But when those
private attorneys are exercising the
power of government for their own self-funding,
that’s not appropriate. That creates dangers. I saw it in the
tobacco litigation, because we were trying
to recover damages that the states had
suffered in the past. That we were continuing to suffer. But also, because we wanted to
change the practices of tobacco companies, we wanted to
especially get them away from marketing to kids. They used to have Joe Camel as
a mascot the tobacco companies. They would have their cigarette
packs in convenience stores out in front of the counter
where it was easy for kids to shoplift. They’d get addicted
to nicotine, it was a great investment
for the tobacco companies. And so there were a
number of different things that we were trying to change. But every time you negotiate
with the tobacco companies about changing
those things, there would be a financial
tradeoff as well. And there were
times when there was a tension between the
attorneys general, wanting to accomplish
the public policy goals, and private attorneys
wanted to keep ratcheting up the financial side of things. In the context of climate,
you have these suits that are based on the idea
of damages, as opposed to just being based
on the usual desire to change the activities. And I think that
raises this possibility of a difference in
approach than what has been practiced in tobacco– in environmental
litigation in the past. There was another
few differences between tobacco suits
and the kind of lawsuits. In the tobacco suits,
we had a product that really didn’t have
that much social utility. When we look at it,
do we really need to have tobacco in the world? Hmm, no. Not really. When you look at oil
and gas, and coal, and other fossil
fuels, those have had tremendous
transformative effect on society, even the mid-1800s
to today our lives are usually different because of
energy development. And so we all know there
is a very strong support for having oil and gas
continue to function. We know that the federal policy
has very often encouraged oil and gas development,
so the nuisance balancing that takes place is a
lot different in tobacco versus the oil and gas cases. A derivative of that is the
implication of driving up the cost of the product. If these suits were
ultimately successful and caused the oil
companies to pay over millions upon millions,
or billions of dollars, that gets passed
along to consumers. That has a negative
effect on the economy. It has a negative
effect on consumers. When you ratchet up the
price of cigarettes, that has public health benefits,
and so it discourages people from smoking. And so the analysis there
was somewhat different. And the final
difference is in terms of the number of defendants. In the lawsuits that have
been filed, they’ve done anything from two
defendants in Boulder, it’s Exxon and
Suncor, another one of the cases started bringing
in coal companies, utilities, a whole wide variety of
different potential plaintiffs. A lot of potential defendants. Lots of different
energy companies. When you think about this
from a litigation management perspective, if you’re
a judge looking at this, instead of having a handful of
major tobacco manufacturers, where you can have a reasonable
discussion and set policy, you have many, many,
many defendants, and potential defendants. And the whole idea of trying
to achieve an outcome from that is very difficult. A similarity in cases is
the desire of the plaintiffs to uncover documents. In tobacco, we had a big
truth in advertising component to the litigation. We were basically hearing
the tobacco companies do advertising that hinted their
products were at least more safe than other cigarettes,
or that, as some of that with the old
advertisements used to say, well more doctors smoke
our brand than any other. With the climate
change litigation, because the plaintiffs are
going after all the documents that they could find
about studies that were done by the defendants
that perhaps might say the defendants had a study
back in the 1980s saying that climate change might
be a result of fossil fuel development, and that becomes
a truth in advertising kind of problem,
because they continue to develop the fossil fuels. They continue to
promote fossil fuels while those companies
knew that they had a study that said they were
in climate change problems. That’s a whole
different context, because the global model
is so much different than just the health model, the
link between smoking and lung cancer, that you find
in the tobacco context. And so, the idea that
an individual defendant can be held responsible
for global climate impact requires, first of all, a fairly
specific chain of causation that might be fairly attenuated. And it also requires
trying to hold a few defendants
responsible for impacts that are caused by activities
all over the world. And so it’s, again, a much
different kind of situation. So how do the courts
deal with these things? Most of the federal
district courts that have had these
suits in front of them have dismissed them. They have found that this
is not an appropriate type of litigation to be
resolved by the courts. There are too many unknowns,
too many public policy implications, too many things
that really required the courts to be acting as the legislative
and executive branch, instead of as the
judicial branch. And so, this is a
type of litigation that raises a lot of
problems for our structure of government, our structure
of decision making. I know a lot of people
have been frustrated by the lack of rapid movements
on climate change issues. But going into the
courts is not going to lead to a result of
changing public policy, or having courts impose
policies that are going to make a dramatic difference. It may have a policy– have public attitude differences. It may reveal documents. It may provide a lot of
fora for the plaintiffs to raise their allegations
and their concerns. But from a purely
litigation perspective, these cases are
not a good approach for judicial decision-making. I’ll stop with that, and
turn things over to you. – Thank you. This is indeed an honor to
be sitting here with you, and to be discussing this topic. Because this is– I think this is
an understatement to say that this is a
critical topic that you all should be engaged in,
thinking about how do we deal with this issue. The issue of climate
change is, in my opinion, and I think the opinion of the
vast majority of professionals who have dealt with this
issue, the scientists, the researchers,
and so on, globally, have said this is one of the
primary concerns we have today as a global society. And so this is something that,
again, I think that you all should be engaged in, and
whichever side of whichever argument you want to
take, the reality is this is a topic we have to
deal with in some fashion. So let me begin by
saying that, well, in June, in one of these
lawsuits that was dismissed against five major oil
companies, I think Shell and Chevron were some
of the ones names. This is initiated by the city
of San Francisco and Oakland. The judge, William
Alsup of the US District Court for the Northern
District of California, said that in his ruling,
that the dangers raised by the complainants are
real and worldwide. Both parties, both
the plaintiffs, the municipalities,
and the defendants, the oil companies, they
accepted the science behind global warming. However, he said, the
problem deserves a solution on a more vast scale than
can be supplied by a district judge or jury on a public
nuisance case, which is exactly what I
think Ms. Norton, Secretary Norton has just argued. So my response to
this is I fully agree with what Ms. Norton
has said, in terms of it would be far better
addressed at the legislative and the executive branch. But the problem
that we have is what do we do in the
absence of any kind of governmental leadership,
vision, or action towards such a solution? What do we do when the
U.S. government, as well as the vast majority of
these energy companies, especially those involved
in the hydrocarbon sector, have had mounting evidence about
the potentially catastrophic impacts of climate change on
people and the environment since the Nixon
administration, 50 years ago? What do you do when the
administration currently in office right now, is engaged
in a, what I would call, a deliberate effort to ignore,
and discount the challenges of climate change. And I’ll give you just
a couple of examples. In April of 2017, the U.S.
Environmental Protection Agency, think about what
that title supposed to be, Environmental
Protection Agency, they overhauled the EPA website. And one of the
things they did was they replaced the online climate
change section with a holding page which basically
said, and still today, I checked it this morning, that
the page is being updated and to reflect the agency’s
new direction under President Donald Trump. And they also said we want
to help you find what you’re looking for, and then
provides a search engine for the general EPA website. So you can type in
climate change, and see where else
you might find those words on the website. But there is no climate
change section anymore. All of the info that
had previously been at EPA.Gov/climatechange,
which had explained human activity, the impact of human activity on the
warming of the planet, and harm to Americans’ health,
and to the crucial ecosystems on which all of us depend, it
all has been taken offline. That was in April 2017, and
there’s no replacement yet. Today, I should
say more recently, Andrew Wheeler, who’s now acting
EPA administrator, former coal lobbyist, recently said that
federal regulations are not necessary to drive greenhouse
gas reductions, which for me begs the question,
if we don’t have regulations as a potential cause of action
for violations of regulations, what are we left with,
in terms of cause of actions for those who are
seeking redress for claims related to climate change? November 4, just a few days ago. Our own president
questioned science– this was in a televised
interview with Axios on HBO. He questioned the scientific
consensus on climate change, including the National
Climate Assessment that our U.S. government
prepared, and suggested the scientists disagree on
the causes of climate change. And this despite the
overwhelming majority of climate scientists in the
US and around the world who have agreed that
human activities are the primary cause
of climate change. He also suggested that climate
change will resolve itself, saying “Is there climate change? Yes. Will it change back? Probably. That’s what I think.” There with no scientific
basis, and this despite the many dozens
of scientific findings that global temperatures
will continue to increase unless greenhouse
gas emissions are significantly reduced. Vice President Mike
Pence, just a few weeks before that, in
October, questioned the scientific research
showing that climate change is primarily caused by
greenhouse gas emissions, telling reporters that its
causes are yet to be seen. The causes are yet to be seen. This despite the fact that
the overwhelming majority, again, scientific
research globally, shows that it’s
anthropogenic, man-made. We are responsible for the vast
majority of greenhouse gases in the atmosphere, and
as the primary causes of climate change. So again, I ask what can we do
when the administration that we would want to address this
issue, the Congress that we would want to
address this issue, is not taking that
type of action? This requires advocates to
take creative and sometimes inconvenient actions
to pursue a remedy. It requires advocates
to take action that not only targets that
the so-called bad actors, but also targets
the general public and the government in
order to develop a deeper understanding of the
issues, but also to pursue policy objectives. And this is one of
the points that you suggested that this
is not litigation, litigation should not be used as a
means for policy objectives. And I have to disagree. And I’ll give you a
couple of examples where that’s been achieved. One is the tobacco litigation
that you mentioned. The policy objectives dealt
with national health issues, people’s health issues. I don’t know if some
of you can remember. I can– I think I remember,
at least vaguely I remember seeing ads about this,
the medicinal value of tobacco. This was still being touted
in the ’60s, at least the social value. But certainly all
these other health benefits that were
being promoted. And that is maybe
as a marketing ploy, but certainly accepted
by the government in its regulation, or
non-regulation, of tobacco. And the tobacco litigation,
even though it did pursue tort in a court
fashion, using all sorts of tort approaches. It did pursue policy
objectives to try and convince the public and the
government to take an approach towards
tobacco, towards smoking, to the point where today, we
have smoke-free zones because of the now-recognized
health implications. We have entire buildings,
entire communities that are now smoke-free. There’s also a very
strong tradition of using litigation for policy
objectives, where you can’t immediately obtain
those remedies from other arms of the
government, legislative and the executive. And to me, possibly
the best example is the work of people like
Thurgood Marshall, who mounted a very successful
frontal assault on the entrenched system
of legal segregation with a series of
lawsuits that culminated in a landmark Supreme
Court decision of Brown v. Board of Education. That was a series of litigation,
very inconvenient at the time, with a social, and political,
and policy objective that yes, it was messy. Yes, it was inconvenient. Yes, it went against
the grain of what people believed at the time. But that’s an issue
of perception. You mentioned social
utility, and I absolutely agree that there is a huge
social utility to energy resources. However, social utility
is in perception. We used to perceive
tobacco as positive. We used to perceive separate
but equal as something positive. Today, we perceive
hydrocarbon sources of energy as indispensable
for our economy. But I can imagine that
5, 10, 20 years from now, a large percent of the
population can look at the social utility of
hydrocarbon-derived energy as irresponsible,
as unimaginable, in light of the harms
that we have already– we already know about, and we
continue to document worldwide. You also mentioned the
Juliana case, which I think is something that all of
you really should look into. This is a case that’s
brought on behalf of 21 young people, children,
youths, and some young people. And they’re arguing that the
failure of the government is leading to climate change. They’re taking a somewhat
different approach than the regular tort nuisance and
the trespass argument. And they’re pursuing
constitutional rights. They’re arguing right
to a clean environment, including substantive
due process right to certain
climate conditions, and equal protection right
to live the same planet as enjoyed by prior generations. They’re also arguing
that common law public trust doctrine, which
their argument is a guarantee to the right to a climate system
capable of sustaining life. And I agree, these are very– this is a very messy way to go
through litigation to achieve these policy objectives. But I have to just make a
comment about the point you raised about the self-dealing
that the lawyers who are now– the ambulance-chasing
type of lawyers that are now looking for
these kinds of litigation, I completely agree. This is not the way we should
be achieving our climate change objectives. But again, I go back
to the question, if the government won’t do
it, the executive won’t do it, Congress won’t do it, the
energy sector certainly aren’t doing it,
what else do we have? What options do we have? These are viable options,
viable legal strategies. Absolutely messy, they
are not easy to make, and they may not get
sustained in court. But I think, as a objective for
long-term policy, which I think is a justifiable objective,
this is right now the only option. – Do you want to respond? – Yes. I’ll do a little
bit of response. Very, very good points
that you’ve raised. As you said, I do disagree
with that approach. And it is in part because of
the long-term implications of having the courts
make these decisions, as opposed to the executive branch,
and the legislative branch. In most of the situations where
we have the courts play a role, it has been– issues that at the time,
seemed very complex. But in comparison to climate
change, are not as complex. When you’re looking at where
the solutions are in climate change, we’re talking about
evolution with technology, and new technologies
that can take the place of the older,
more polluting technologies. You are looking at balancing
out the economic development side and the
prosperity side, versus the environmental impact. They’re the kinds
of decisions that really are not well-suited
to the judicial context. And so yes, there
may be situations where this whole debate
is pushed along by having litigation take place. But it’s something that we
really ought to stop and think about, and that’s
the way we want to go about solving these issues. Or not. I’m on the board of a company in
the electric utility industry. And the electric
utility industry has moved away from
coal-fired power plants. And part of that is because
of regulatory pressure, but a lot of that is
from public attitudes. And so they’re
much more thinking in terms of renewable energy. Part of that is
because technology has changed the cost structure. Renewable energy in the
1970s was extremely expensive and extremely impractical. Today, it is cost effective,
and it is a practical choice in many situations. And so, those kinds of huge
changes need to take place, and they’re not things
that a court can really force to take place. And so I submit that there
are other ways of trying to go about these things. – All right, questions
from the audience? Many. OK. Let’s turn with a student first,
and then we’ll get through it. – You mentioned about causation,
there was a causation problem, because the environment as a
whole is such a large system compared to trying to apportion
fault through a few actors. Do you think that pursuing
judgments against those actors could actually change
the perception, and the conversation,
from a political one to more of a qualitative one? Kind of in the realm of
the society at large, if that makes sense? Because right now,
it seems like it’s how the change does, or does
not exist, versus like OK, it does exist. What can we do to change it? We think that
judgments would like help change that conversation. – I don’t so much see
that as the likely result. I think that the effort is to
try and make the oil companies look like bad guys. And that’s what was
successfully done with tobacco. It has a different effect
when we’re talking about it with energy companies. First of all, what is the
money going to be used for? We certainly struggled
with that in tobacco. Lots of money going
into state treasuries. It’s going for roads. It’s for schools. It’s not really
going for health, as it was originally intended. And so there’s that
kind of benefit that can have difficulty, in
terms of having the message be watered down, if
that’s what you’re looking at from the
plaintiffs’ perspective. – So can you talk about the whole litigation [? provided ?]
climate change. And can you talk
about the example you were [INAUDIBLE] But there
is these other factors that we don’t seem to be, or because
it isn’t that fashionable now, and I am thinking the lines
of Massachusetts versus EPA, whether we can to use
this regulatory framework that we have in place,
which is inadequate at best. Right? It was enacted in the ’70s. I mean, the ’70s, our
conception of climate change is not the conception today, no
matter what the president says. But do you see, and this is for
both of you, room to exploit, to try to push the
executive under the legislature
to do something, using the implication based
on this category framework? Clean Air Act, I
don’t envision how, but via the Endangered Species
Act, or Clean Water Act, perhaps? – Those certainly
are things that would be more of the standard
role for the judiciary to play, in terms of looking at
those kinds of things, in terms of the
factual situations that would be in scientific arguments
that would come forward as a result of those
kinds of cases. In Massachusetts vs.
EPA, that was essentially dealing with whether carbon
dioxide is a pollutant or not, that was one that maybe had
a uniquely broad impact, it was something that the courts
could look at, could wrestle with it, and make
a decision that has significant implications. Some of the others are
a lot more difficult. Think about the
Endangered Species Act, yes, a court can
say this species is being impacted by changes
brought about by the warming climate, or by a drier
climate, of whatever climate-related changes. And activities are going
to have to take place under the Endangered
Species Act to address that, but it really is within a
narrow context, instead of something that is going to
bring about broader changes. – So, I’m skeptical
because as you said, that those patches
were developed in 1970. They’ve been tweaked over the
years, but not in relation to climate change. And even the tailpipe emissions
of carbon dioxide cases have passed. That’s one component
of climate change. I don’t know how
else you’re going to fit in all the other
either greenhouse gases, or the sources under
the Clean Air Act. On the Clean Water Act, I
was struggling to find a way. I think there’s a little
bit more opportunity under the Endangered Species
Act, but it’s still a stretch. Those factors are not designed
to deal with climate change. So I’d love to have a
statutory approach, as opposed to common law. But I don’t see one. – Professor Rambo, you had your hand up. – Thank you for being
here, Secretary Norton. I really appreciate it. It’s an honor to have you. I feel from your
talk, it’s reminding me a little bit of an
experience I had with my mother. I grew up in Atlanta, and I
went off to college in New York, and I realized that the
Civil Rights Movement had gone all around me, and I really
hadn’t done anything, because I lived in suburban Atlanta. And I came home and said to
my mother, where were you? What were you doing? Black people were
being so mistreated. And she said well, I just
didn’t think Dr. King was going about it the right way. What I feel missing from
what I heard from you is the sense of urgency. We know that in
the next few years, we’re going to have irreversible
damage from climate change. And I heard Professor
Eckstein say what should we be doing
instead of going to the courts? And I really haven’t
heard an answer. And so I’m just wondering
what that option is, other than using the courts
the way they’re being used, whether it’s messy,
or inconvenient, or whatever. What is that option that
we should be taking? Because it certainly seems to
me that we should feel this is wildly urgent, if not
the single biggest issue of our time. What the courts are
doing is not going to remotely matter if
we don’t have courts, because we don’t have a planet. – This, to a certain
extent I tend to see some of the judicial
activity as a diversion from working together
constructively. I think that I have seen
the energy companies, and I used to work
with Royal Dutch Shell, and saw them making
a lot of investments, and doing work to
alternative energies, on developing fossil– not fossil fuels, but gasoline
from algae, those kinds of things that I
think are the types of things that are going to have
more benefit in the long run. And so pursuing an
approach that says let’s try and get billions of dollars
out of the energy companies, let’s make this into a
litigation situation, instead of one where people
are discussing things in terms of public debate. I think it’s a different
approach that yes, I understand people wanting to have urgency. But urgency in the
wrong direction is not necessarily
really moving us ahead. – So your answer is
let capitalism do it? – No. Capitalism, executive branch,
legislative branch, those kinds of things are
the appropriate way to do it. – I see we had a question
in the very back. And then we’ll come to you. – Yeah. That was one of my things, too. – Speak up, we can’t hear you. – Oh, sorry. That was one of my things,
too, about capitalism, right? We talked about like profit
motives and things like that. And so I’m wondering if
our legislators change every so often, and so
does their ideology, right? And as you pointed
out earlier, too, that means that they change the
way they view climate change and environment, and things like
that, is how did you guys view the role of capitalism? Basically profit-based
motives and actually affecting our climate, in
negative or positive ways? – I tend to focus on
technology and the development of new technologies. I’ve worked with a
venture capital group that was trying to raise money that would
be invested in startups that were doing clean technologies,
mostly around renewable energy. And it’s very exciting. that is
kind of thing where you can really see
changes taking place. And I’ve also talked with a
number of researchers that are doing work along those lines. If a court comes in
and tries to order that something is going to
take place, they run it into– we are going to shift
away from fossil fuels and to renewable energy. That is a transition that
has been the stumbling block for the
democratic processes, making those kinds of changes. We just can’t wave
the magic wand and have that kind
of change take place. And I think with the
capitalist system, people wanting to do as they’ve
done in the computer industry, develop new technologies,
get those implemented, profit by making
changes in that way. I think that has a lot of
very strong possibility that takes place without
having a court trying to navigate that. [INAUDIBLE] – I’m a big fan of
public-private partnerships, and I think there’s great
opportunities for the private sector to get involved in
innovation, technology, and so on. But you’ve got to have a
public-private partnership. And if the public is not
there, the government is not there, in fact, when
the government is actually taking actions that
are facilitating the old technologies,
and cracking down on the potentially
new technologies, I have a hard time seeing
how this can progress, and how the market
can actually step in. It becomes a disincentive for
the market to be innovative, and that’s. – Two more questions. [INAUDIBLE] and I’ll finish
with our [INAUDIBLE].. – You both mentioned this
is a very global problem, and I think we’re all
aware that it very much is. But countries such as
Denmark and Germany have done a very good job
about implementing clean energy and cutting their emissions. So I guess, how do you think
America’s system of government can mimic what they’re doing? And maybe acknowledging there is a
problem is the first step, but what do you
think they could do? – First of all, we have
done a great deal, in terms of minimizing our emissions in
exactly the way nobody would have expected, which
is why the shale gas revolution has caused
utilities to switch from coal to natural gas. And so, our emissions
have made more progress than most of the
European countries, and countries around the world. And so, we’ve seen, and this
is an example of technology not mandated by government,
making a a change that has been beneficial. And European countries do tend
to have a different approach on these things. But they have utilized
an approach that I like, which except the way we’ve
tried to implement it has been a disaster when we’ve tried. But I did work back in the 1980s
on emissions trading, which is now similar to the cap and
trade approach. And that’s the
idea of essentially, by establishment
of property rights, or establishment of a structure
that provides a government overview, and then allows
competition and market forces to be applied in
developing new technologies, and implementing
technologies, and so forth. Considering the
government mandates, its a governance
structure that encourages a beneficial outcome. And I think that has
a lot more opportunity to make some real headway. There are experiments
taking place all over the world, the
different approaches. And we’ll see how those
different approaches work. – Sure. First of all, a big
difference between Europe and the United States is
this perception, perception of the priorities, of the value
of the environment as part of the habitat of people. The majority of Europeans
are what we say, “more green” than Americans. And that’s a
perception of society. It’s something that
we as a community have to make that decision. We want to go become
more environmentally conscious, and so on. And that’s a social movement. That’s also national policy. The other point I
just want to raise, I agree that the US has
made reductions in emissions of climate change gases. I am skeptical of the claim
that look how well we did, because we moved to
shale gas production, and therefore we
reduced our emissions, because we didn’t do it for
the climate change impacts. That was not intentional. That became a side
benefit, in my opinion, that we pursued shale gas
because of the economic value. The energy giants
and the small ones, they all saw the potential of
becoming for the first time ever, becoming an
exporter of energy. It’s a money making thing. I don’t think the objective
was greenhouse gas reductions. So I’m skeptical of that claim. – I don’t know any way
say that the motivation for the shale revolution was
that the company saying this will benefit the climate. But I do think it’s an example
that we ought to look at to say the government
doesn’t always know how to mandate the right
outcome, or a benefit outcome. – And then our last question. Sorry we’re running out of time,
but a quick yes or no question? – OK. – Do you have a yes or no question? – Just real quick. On the heels of the
recent midterm elections, and I know we all were
paying attention to that, seems some of the top issues
that people are prioritizing, in terms of their votes,
climate change, environment, was not one of them. Is there any chance that
this topic, environmental, climate change, could
be de-politicized? Or do you think we’re
too far down that road? – Well, I’ve been dealing
with environmental issues for several decades, and I’ve
never seen it de-politicized. But there are there
are many opportunities for cooperative work. And I think we ought to
explore those opportunities. They never get the visibility. Good neighbors and cooperation
doesn’t make headlines. There’s a lot of possibility
for things taking place that you may not
know about but that are great things going on. – We in the US tend to
be very reactionary. So folks down in
Houston might be more amenable to
de-politicizing climate change, but the rest of the country,
until something big hits them, I’m skeptical. – And then our last
question, you can– you can ask your question. But I want to
introduce you at least. This is the president for
the Energy Law Association. So if you guys are
interested, and I think you are
because you’re here, in energy law, then
certainly [INAUDIBLE] and other members of the
Energy Law Association. But please ask your question. We’re here. We’re hanging. – So I think there are
environmental scientists, when I was in the
military, I couldn’t find ways to get people
to do the right thing. We needed to incentivize them. And we’ve seen the same thing
in the history of the United States, where companies
didn’t do the right thing. The Cuyahoga River caught
on fire multiple times, and people had– it
made a major issue with developmental
issues, because of environmental issues. Because companies weren’t
willing to do the right thing, and it took government
involvement. Now right now, this
government might not be willing to get involved. But once the government
does get to that point, where do you think carbon
taxes fit into there? And that just got shot
down in Washington State, this past election. But if that could, how would
you see that implemented? I guess I’m skeptical of some
things like that, because of my involvement that
I mentioned in emissions trading. And my enthusiasm
for that idea in general, so I’ve worked with acid rain
provisions in the Clean Air Act that have really
had great benefits without a lot of
micromanagement by government. But when that same
kind of context was brought to Congress
to try and implement, it became free money, and
every member of Congress had some great ideas about
how this free money ought to be spent. And what was a
beneficial program, that had some potentially
good elements to it, fell of its own weight
because it was free money in the political process. I am concerned that
carbon tax is even more something in that direction
because it is purely economic. And so from the perspective
of making some changes, in terms of the carbon
intensity of economic activity, yes, that’s an approach
that might be better from the economic perspective. And better for an economics
kind of perspective, but it still allows people
to make free decisions about how to implement it. But again from a
government perspective, I have my concerns about
having lots, and lots, and lots of money go
from the private sector. – Prof. Eckstein, what are your thoughts? – I don’t disagree. I’m also skeptical about,
or I shouldn’t say skeptical. I’m hesitant about
carbon taxation because I like the idea concept,
because you could tax it at different levels. I’m hesitant about what the
government could or couldn’t do, or wouldn’t know what to do. And I do agree that the
acid rain example, I think, might be a much better
example, in terms of credits and so on, in terms
of a way to manage these kinds of emissions. – Well, I certainly
thank you guys, especially for coming and
saying 10 minutes after. If you had any interest in
the Natural Resources Program, Professor Eckstein,
Professor Casado Pérez, Professor Guillermo, all of them can
talk to you about the classes that are coming up. And certainly I go on the
website, click on the links, so you can get information. So thanks again, guys. [APPLAUSE]

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