Law School’s Gerrard Sees Little Hope for Climate Bill This Year

by Bridget O'Brian

A chart shows how lawsuits related to climate change have skyrocketed in recent years, with the majority filed by industry seeking to overturn EPA rules. (Image credit: Arnold & Porter and Columbia Center for Climate Change Law)
A chart shows how lawsuits related to climate change have skyrocketed in recent years, with the majority filed by industry seeking to overturn EPA rules.
Image credit: Arnold & Porter and Columbia Center for Climate Change Law

Now that Republicans have taken control of the House of Representatives, a leading expert on climate change law is not optimistic about the prospects for meaningful climate legislation in the next two years.

“The best we can hope for from this Congress is some energy legislation that would encourage renewable energy and efficiency”—and even that isn’t a sure thing, says Michael Gerrard (CC’72), director of Columbia Law School’s Center for Climate Change Law.

The center, which was started in 2009, develops legal techniques to fight climate change, trains law students and lawyers in their use, and serves as a clearinghouse for information about the issue. Gerrard was an environmental lawyer for 30 years, most recently at the law firm Arnold & Porter, before becoming the Andrew Sabin Professor of Professional Practice at the law school; he also holds an appointment at the Earth Institute.

He sees the fight over climate change focusing on the regulatory authority of the Environmental Protection Agency, with Congress attempting to suspend or revoke it or simply to freeze the agency’s funding. Republicans have already introduced legislation to block the E.P.A.’s ability to regulate greenhouse gases.

The U.S. Supreme Court held in 2007 that the Clean Air Act grants the agency the authority to regulate heat-trapping auto emissions. It was, at the time, a big win for environmentalists. This year, Gerrard and other climate change advocates are awaiting the outcome of a case the Supreme Court recently agreed to hear, Connecticut vs. American Electric Power.

It was brought by eight states seeking to force five utilities to reduce their greenhouse gas emissions on the theory that they are a public nuisance. In 2009, the 2nd U.S. Circuit Court of Appeals court ruled in favor of the states. This theory could open up liability claims against not only electric utilities, but also a broad swath of industries.

It could be the Court’s most important environmental decision since the 2007 case, Massachusetts v. EPA.

“This will be very big,” Gerrard says. “We know the four justices who dissented in that case would want to reverse this current case.” He was referring to Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The outcome of the Connecticut case is uncertain in part because Justice Sonia Sotomayor has recused herself due to her involvement in the case at the appellate level, and a 4-4 tie is possible.

Gerrard notes that in addition to the Supreme Court action, lawsuits related to climate change have skyrocketed. According to the database of the Center for Climate Change Law, 132 lawsuits were filed in U.S. courts in 2010 compared to 54 in 2009. The majority, 96, were filed by industry firms seeking to overturn the E.P.A.’s regulations concerning greenhouse gas emissions. Just a handful were filed by environmentalists.

“Coal-fired plants are the largest single source of greenhouse gases in the United States so the environmental community has launched a campaign to stop the construction of any new coal plants, and it’s been very successful so far,” Gerrard says.

Unlike tax or bankruptcy law, there isn’t one statute governing climate change, nor are there specific laws on the books as yet to address climate change.

Those difficulties stem from the very nature of climate change. “It involves a broad range of human activities that have a cumulative impact over time and over space all over the world,” says Gerrard.

“Reducing greenhouse gas emissions in any one location will not have a local or immediate effect, but it will contribute overall to the eventual solution of the problem.”

Advocates for climate change legislation have their work cut out for them over the next couple years as they contend with a new crop of lawmakers hostile to the idea of regulating emissions. In addition to introducing anti-regulatory bills, House climate change skeptics are expected to launch investigations challenging scientific research on the topic.

“The 2012 election could bring a whole new ball game,” says Gerrard. “It could get better, it could get worse.”

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