Climate Negotiations, Comer & Kivalina decisions, U.S. Business Lobby, Nuclear Power & Chinese Professor

The latest round of pre-Copenhagen climate negotiations concluded a week ago in Bangkok with little progress. But this week there were signs that developing countries were showing some flexibility in the negotiations by dropping their insistence on mandated technology transfer. EU climate negotiators reported that their developing country counterparts are now embracing the concept of joint development of low carbon technologies rather than mandated technology transfer. FIona Harvey, Hopes for Deal on Climate Boosted, Financial Times, Oct. 16, 2009, at 3.

Two new court decisions surfaced this week on common law nuisance actions brought due to harm caused by climate change. In Comer v. Murphy Oil USA, the U.S. Court of Appeals for the Fifth Circuit held that a district court had erred when it dismissed on political question grounds a lawsuit alleging that greenhouse gas (GHG) emissions by oil and chemical companies had added to the ferocity of Hurricane Katrina. The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw,com

A federal district judge in San Francisco has reached a contrary result in a lawsuit by an arctic village seeking damages from oil companies for harmed caused by climate change. In Native Village of Kivalina v. ExxonMobil Corporation, Judge Saundra Armstrong held that while the international dimensions of climate change did not render the case nonjusticiable, the absence of judicially discoverable and manageable standards for holding defendants liable for damages did make it a nonjusticiable political question. The judge also held that the plaintiffs lacked standing in light of the attentuated causal change they alleged between the defendants’ conduct and their injuries. Plaintiffs have vowed to appeal this case to the Ninth Circuit which may well reverse in light of the rejection of the political question grounds by the Second (Connecticut v. American Electric Power) and Fifth (Comer v. Murphy Oil USA) Circuits. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw.com

Debate over cap-and-trade legislation in the U.S. Senate is causing a split within the business community. On Friday Washington Post business reporter Steven Pearlstein wrote a devastating column attacking the campaign the U.S. Chamber of Commerce is waging against the legislation as not representing the true views of the Chamber’s members who are far less than the 3 million it claims. See Steven Pearlstein, U.S. Chamber of Commerce Reaping the WHirlwind, Washington Post, Oct. 16, 2009, at A16.

Support for cap-and-trade legislation is reportedly growing with indications that some Republican Senators may support the legislation if it includes additional subsidies to revive the U.S. nuclear power industry. The German government also reportedly is reconsidering its decision to phase out nuclear power. Last week the U.S. Nuclear Regulatory Commission (NRC) rejected the design of the new AP1000 reactor due to concerns about the adequacy of the containment vessel, which may increase public confidence in the NRC’s efforts to ensure the safety of new reactors.

On Friday I had lunch in Washington D.C. with Professor Wei Guihong, the deputy dean of the Department of Law at the Beijing Forestry University. I first met Professor Wei two and a half years ago when she participated in the Globalizing Clinical Education conference held at the University of Maryland School of Law. She has been spending the last year in the United States researching public interest law at Georgetown University, working primarily with Professor Philip Schrag. Professor Wei had just returned from a conference in Portland, Oregon. She will return to Beijing at the end of the month and she is interested in promoting the use of conservation easements in China. She also is interested in biodiversity and forestry protection law.