Global Climate Law Blog : Global Climate Law Blog : Published by Howrey Law Firm : Climate Attorneys and Environmental Lawyers

First, the proposed provision in ACES was broader than the citizen suit provision in the CAA. The ACES provision would have covered actual or reasonably expected harm from any effect of air pollution "currently occurring or at risk of occurring" regardless of whether a pollutant is a greenhouse gas or the effect is climate-related.

Second, the remedies available under the two provisions differ. The current CAA provision only provides for enforcement as a remedy; there is no damage remedy. The ACES provision would have provided for a damage remedy of $75,000 per lawsuit. Moreover, like the current CAA provision, the ACES provision would have allowed the recovery of costs of litigation, including reasonable attorneys fees.

Third, the ACES provision would have modified the standing requirement for a citizen suit. Standing under the CAA provision is limited to those who are actually harmed or face imminent harm. The ACES provision would have watered down the standing requirement in two significant ways. First, a plaintiff would not have needed not show imminent harm under the draft provision, only that the plaintiff "reasonably expects" to suffer harm. This subjective standard, focused on the mind of the plaintiff rather than on a more objective look at whether harm is imminent, would have made this standard difficult to apply (and more difficult for defendants to address). Second, the standard for showing "harm" would also have been diminished: the ACES provision talks about harm "at risk of occurring" (again, no notion of imminence, no measure for the significance of that risk), and states that harm includes "incremental exacerbation" of risk associated with even a "small incremental emission of any air pollutant." A final change under the ACES provision would have been that the risk need not be widely shared. As a result, the ACES provision would not have just lowered the bar for harm allegations; it would have put the bar on the ground.

The bottom line is that the ACES citizen suit provision would have been problematic for business defendants. While the provision included some limitations (e.g., citizen suit plaintiffs would have had to demonstrate violations of emission standards), even minor violations of emission standards with no actual harm could have spurred a plaintiff, encouraged by attorneys with hopes of recovering fees, to seek abatement and damages. The ACES provision likely would have spawned significant additional litigation because of the elimination of the requirement to show imminent or actual harm, which would have removed what has historically been a significant hurdle in citizen suit actions.