NGOs charged with playing larger role in climate regulation and climate litigation
Non-governmental organizations (“NGOs”) have historically taken an active role in the development and enforcement of environmental laws in the United States in an approach that some refer to as “regulation by litigation.” Given their concerns about global climate change, and the absence of federal legislative activity and enforcement, NGOs are calling for more unified and effective litigation tactics in an attempt to force action on climate policy.
This was the message of Peter Lehner, Executive Director of the Natural Resources Defense Council at the 2008 Gilbert & Sarah Kerlin Lecture on Environmental Law entitled "Environment, Law, and Nonprofits: How NGOs Shape Our Laws, Health, and Communities."
Mr. Lehner began by comparing the environmental arena to the financial industry. Mr. Lehner stated, "The role of NGOs in environmental law while not unique is indeed rare and missing from other areas of law, most notably the law of securities and finance." He asserted that the present-day financial crisis may not have occurred if NGOs were as active in the financial industry as they have been in the environmental realm.
Mr. Lehner included the Natural Resources Defense Counsel (“NRDC”) among NGOs that have been active players in pushing environmental legislation and enforcing environmental laws through litigation. An example of one recent bill sponsored by NRDC and signed by Governor Arnold Schwarzenegger of California just last week is Senate Bill 375: Redesigning Communities to Reduce Greenhouse Gases. The bill is aimed at reducing greenhouse gas emissions by forcing communities to develop (and redevelop) in a more compact way to reduce the level of automobile usage, particularly for commuting.
The NRDC and other environmental NGOs have repeatedly sued EPA and other federal agencies to either enforce environmental laws or to try to create environmental policy (or its judicially imposed equivalent). For example, as the Los Angeles Times reported:
Every time a new coal-fired power plant is proposed anywhere in the United States, a lawyer from the Sierra Club or an allied environmental group is assigned to stop it, by any bureaucratic or legal means necessary. . . .
The plant-by-plant strategy is part of a campaign by environmentalists to force the federal government to deal with climate change. The fights are scattered from Georgia to Wyoming, from Illinois to Texas, but the ultimate target is Washington . . .
One thing is clear from Mr. Lehner’s lecture – additional climate litigation initiated by NGOs is certain. Specifically, Mr. Lehner called for more lawsuits to fill the void of federal government inaction on climate policy and to enforce any laws or regulations that are promulgated. Mr. Lehner encouraged NGOs to focus on all legislative and regulatory enforcement tools and, in particular, the use of penalty provisions to incentivize environmental compliance. He also called for a shifting of the burden of proof in environmental matters to the alleged polluter and creation of what he called a presumption in favor of public health.
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A shift in the burden of proof is troublesome because it would seemingly minimize a would-be plaintiffs’ pleading requirements. NGO enforcement litigation would rise dramatically. For example, one can envision litigation against emission sources with emissions below legal limits. A compliant company would then be forced to mount a costly battle to demonstrate that, despite its compliance with emission levels determined by regulators to be protective or public health, a particular source of emissions did not affect public health. In effect, a shifting of the burden of proof would turn NGOs and the judges who hear their claims into super-regulators, without the balanced scientific viewpoint and expertise of a regulatory agency, and outside the checks and balances that apply to executive regulators.