Combatting Climate Change in the Courts

by David W. Schnare

General Counsel Energy & Environment Legal Institute

On February 10th, the American Constitution Society for Law and Policy (“ACS”) hosted a panel discussion on legal approaches and activities associated with “combatting” climate change through legal action. Topics covered were RICO prosecutions, climate torts and the Supreme Court’s stay of the Clean Power Plan. The session was organized and moderated by Lisa Heinzerling, the attorney who was brought into EPA to manage the legal analysis of how to extend the agency’s powers beyond the limits of the Clean Air Act in order to implement the environmental activists’ climate agenda, and who had previously won the Massachusetts v. EPA case enabling EPA to regulate carbon dioxide. The discussion panel consisted of Richard E. Ayres, Founding Partner, Ayres Law Group, LLP; Co-Founder, Natural Resources Defense Council; Sharon Eubanks, Partner, Bordas & Bordas, PLLC; lead counsel for the United States in United States v. Phillip Morris, et al. (the RICO tobacco case); Matthew F. Pawa, President, Pawa Law Group, P.C., who has failed repeatedly in his civil climate change tort claims against hydrocarbon companies; and the obligatory “other side of the argument” panelist, Roger R. Martella, Jr., Partner, Sidley Austin, LLP; former General Counsel, Environmental Protection Agency and representing parties opposing EPA’s Clean Power Plan. In addition, Senator Sheldon Whitehouse (D-RI) offered remarks.

The session was instructive, even if not in the manner intended by Heinzerling. Before getting to specifics, however, it pays to understand the setting of this forum. The ACS is a very liberal association of legal progressives. It is a young group and its purposes are two-fold – to create the next generation of progressive attorneys and to create a national network useful in influencing judges nationwide. They sponsor over 1,000 sessions a year pushing their agenda. In their own words, they are “debunking conservative buzzwords such as “originalism” and “strict construction” that use neutral-sounding language but all too often lead to conservative policy outcomes.”

As a second introductory note, the audience was equally progressive (like attracts like), consisting of about 60 folks, young and old, representing a diversity from the Union of Concerned Scientists to the Natural Resources Defense Council. The event was covered by Reuters and InsideEPA.

Although last to speak, the keynote message was offered by Senator Whitehouse. He supports a federal RICO investigation and prosecution of “deniers.” His was a political screed based exclusively on a presumption of a scientific consensus that humans are causing climate change through use of hydrocarbons. He believes the tobacco RICO case is the “roadmap” for prosecution of deniers and he looks forward to the day when the CEOs of the coal, petrochemical and electric power industry are marched before the Senate to confess their crimes. Notably, he took no questions, probably because there were some in the audience that had pushed back against the regular panel and he didn’t want to be confronted by them. The take-away from his comments is that he is touting the same broken record on climate and RICO that he has been, but that he is no more than a cheerleader, one without a portfolio to force any kind of litigation against “deniers.”

Sharon Eubanks was the first to speak and offered the most useful content. She began with the unfounded assertion that RICO could be applied to hydrocarbon companies and anyone who received grant support from them and anyone who agreed with them on the issues and anyone who denied anthropogenic climate change or anthropogenic global warming (“ACC” or “AGW”). She later admitted the facts necessary to bring a claim were not in hand and that the Department of Justice was unlikely to undertake a RICO investigation, something RICO authorizes DOJ to do before filing a complaint.

She laid out the essential requirements of a RICO case, and in that she was instructive. First, she explained that any person, formal or informal association, corporation or the like that has a “pattern of conspiracy” shown to participate in “any association in fact” would be subject to a RICO prosecution. If an organization received funds from Exxon to examine and discuss climate change, everyone in that organization would be subject to RICO, as would the beer buddies who discussed the issue over lunch and later went on to offer their personal opinions on the subject that were “denier” in nature, even if the beer buddies didn’t receive any of the grant and were simply using their first amendment right to free speech. Sort of chilling, isn’t it.

Second, to prosecute a RICO claim, there has to be a predicate criminal act. In a civil RICO case, however, this act need not be proven beyond a reasonable doubt, but only by a fair preponderance of the evidence. The typical predicate criminal acts are mail fraud and wire fraud. The scheme to defraud must be shown, but can be as simple as a denial of ACC that allowed the company to make greater profits than if they had admitted their product would cause an end to civilization as we know it. Two or more emails that carry out that scheme are a sufficient pattern of conspiracy to support a RICO prosecution. Any email that supports that scheme (apparently regardless of free speech protections) may be used to include the author of any email as a defendant.

Finally, the remedies vary depending on where one sues. Suing in the United States District Court for the District of Columbia, one only gets injunctive relief in the form of an apology and promise to not do it again. Apparently the massive cost of defending such a case is penalty enough for the D.C. Circuit. But, in other jurisdictions, RICO remedies are considered forward looking and the defendant may have to disgorge all profits associated with their denial. The money goes to the government. (Yes, this is a tax scheme, not really an effort to remedy environmental harm or corruption.)

After explaining the law, Ms. Eubanks offered a few words about how a prosecution would go forward. Absent clear evidence of fraud, there can be no case filed. DOJ can begin an investigation before filing, but a private citizen cannot. A state can conduct an investigation, and that is what will be done in this case, basically out of the New York AG’s offices. That investigation, and case filing, would be followed by an extremely invasive discovery effort. In the tobacco case, the government demanded over 2 billion pages of discovery from the defendants. According to Ms. Eubanks, a single email from a junior employee stating that there is a consensus about AGW and the company is contributing to AGW is sufficient to prove a fraud in the event the company does not admit to causing AGW. This leads to a defense that a junior employee does not speak for the company, but Ms. Eubanks did not discuss that point.

Richard (I created NRDC and am now in private practice making tons of money) Ayres had a simple message. First, he admitted that NRDC and its contemporaries do not have the wherewithal to prosecute such a case. One look at NRDC, EarthJustice or the Sierra Club’s IRS form 990s shows they have, jointly, more than $100 million a year in income. Thus, what he is saying is that they just don’t want to take the case on. They want a consortium of states to do so. Second, he recognized that all they’d get from winning a RICO case is an order from the court telling deniers to quit denying. That, however, seems to be what he wants. Specifically, he stated that he wants to change the meme from “is the science in” to “who is telling the truth.” He was challenged by the audience, one of whom suggested that to “tell the truth” one first needs to know what “the truth” is, which means that one is back to whether “the science is in.” His response was a non-verbal wince.

Matt Pawa spoke to civil tort actions against companies under a negligence theory, “climate change harmed me.” He admitted that they had been unsuccessful with these claims in federal court as the courts held that the Clean Air Act preempted the tort claims. He suggested that cases brought in state courts are the obvious next step, but he apparently doesn’t realize that the states have their own air pollution statutes that also will preempt a state tort. When asked when the next case will be filed in a state court, and where (a Reuters question), he responded, “Any day now, probably after a hot day or when a tornado hits a town. It is going to happen any day now.”

Roger Martella was eventually allowed to speak, and considering the audience, he took a very narrow line, suggesting that past litigation appears to reflect three principles. First, courts are happy to order a government to do something about climate change, but they are unwilling to be specific as to what that should be. This is true both in the U.S. and in Europe. Second, courts are not willing to order decarbonization or energy goals. That is a regulatory matter. They eschew tort claims, finding them preempted by the regulatory schemes. Third, courts don’t want to be triers of facts regarding whether the climate is changing beyond its normal variation or why.

With regard to the SCOTUS stay of the Clean Power Plan, everyone on the panel was surprised at the outcome. Ayers was asked to predict the outcome of the case and stated that the rule would be upheld. Martella, like any sane attorney, refused to predict what SCOTUS would do, but did indicate that obtaining the stay was more than just a surprise. To obtain a stay, the majority of the Court had to reach a conclusion that those opposing the Clean Power Plan would more likely than not prevail on the merits of their claim. That is the high bar the “deniers” had to clear and they did.

And, as a final note, the panel had suggested that there is no legitimate defense argument that climate change litigation is most properly considered a political question. Heinzerling was asked about this since the previous administration was unwilling to issue an endangerment finding and the next administration may well reconsider and reverse the Obama endangerment finding. Her response was that she was 100% certain that no administration would ever overturn the endangerment finding. Of course, she was equally certain SCOTUS would not issue a stay.

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

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