The Unexpected Twist in Climate Lawsuits: How Weakening Regulations Could Empower Plaintiffs
A surprising outcome is emerging from the Trump administration’s rollback of key environmental regulations: the potential to strengthen legal challenges against fossil fuel companies for climate change damages. The recent dismantling of the “endangerment finding” – the EPA’s basis for regulating greenhouse gases – is ironically removing a crucial defense used by these companies in ongoing litigation.
What Was the ‘Endangerment Finding’?
Established in 2009 under the Obama administration, the ‘endangerment finding’ identified six primary greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – as pollutants harmful to public health and welfare. This determination provided the legal foundation for the Environmental Protection Agency (EPA) and state governments to implement regulations controlling greenhouse gas emissions.
The Trump Administration’s Rollback
Earlier this month, the EPA finalized the repeal of this ‘endangerment finding’. This action eliminates the federal basis for regulating emissions from vehicles and potentially opens the door to dismantling regulations for stationary sources like power plants. The move has been widely interpreted as a concession to the oil and gas industry.
The Paradox: Removing the Legal Shield for Fossil Fuel Companies
However, legal experts suggest this rollback could backfire. For years, fossil fuel companies have relied on the legal principle of “federal pre-emption” to defend themselves against climate liability lawsuits. They argued that because the federal Clean Air Act comprehensively regulated greenhouse gases, state-level regulations and lawsuits were invalid.
Now, with the EPA effectively abandoning its regulatory authority over greenhouse gases, that argument is significantly weakened. As Vermont Law School environmental law professor Pat Parenteau explains, “If the federal government is no longer regulating greenhouse gases, the argument that federal law preempts state responsibility loses its persuasiveness.”
State and Local Governments Take the Lead
Several states and local governments have already filed lawsuits against major oil companies seeking compensation for climate-related damages. States like Vermont and New York have passed “climate superfund” laws, aiming to hold corporations accountable for the costs of climate disasters.
The University of Pennsylvania Law School’s Sarah Light adds, “When the agency says the Clean Air Act doesn’t apply to greenhouse gases, the premise for pre-empting state law collapses.”
Industry Concerns and Potential Countermeasures
The energy sector is bracing for an increase in litigation. The Edison Electric Institute warned last year that repealing the ‘endangerment finding’ could “trigger litigation.” While the American Petroleum Institute (API) supported the vehicle emissions rollback, it expressed caution regarding broader implications for stationary sources.
Some anticipate that the industry will lobby for legislative protections, seeking a broad “shield” from climate liability, similar to the protections secured by the gun industry in 2005.
The Legal Battle Ahead
The EPA maintains that the pre-emption clause of the Clean Air Act remains valid, but the ultimate decision rests with the courts. The Supreme Court is currently considering a petition from oil companies seeking to halt a climate lawsuit in Boulder, Colorado. The Court’s ruling could have far-reaching consequences for other climate liability cases and the validity of “climate superfund” laws.
The Future of Climate Litigation
Even with federal regulatory setbacks, experts predict that state and local governments will continue to pursue innovative legal strategies to hold polluters accountable. As one climate litigation researcher noted, “As the federal backstop weakens, regional courts and state governments will play an increasingly important role. Federal inaction doesn’t erase the reality of climate damage.”
Did you know?
The legal concept of “federal pre-emption” allows federal law to supersede state law when there is a conflict. This has been a key defense strategy for fossil fuel companies in climate lawsuits.
Pro Tip
Preserve an eye on state-level climate legislation. Many states are actively pursuing policies to address climate change and hold polluters accountable, even in the absence of strong federal action.
FAQ
Q: What is the ‘endangerment finding’?
A: It’s the EPA’s determination that greenhouse gases pose a threat to public health and welfare, providing the legal basis for regulating them.
Q: How does repealing the ‘endangerment finding’ help lawsuits against oil companies?
A: It removes a key legal defense used by these companies – the argument that federal regulations preempt state-level lawsuits.
Q: What is ‘federal pre-emption’?
A: It’s a legal principle where federal law takes precedence over state law when there’s a conflict.
Q: What are ‘climate superfund’ laws?
A: Laws passed by some states that aim to make fossil fuel companies pay for the costs of climate-related disasters.
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