During the recent GOP boycott of climate bill talks in the Senate Environment and Public Works Committee, the U.S. Chamber of Commerce sent committee members a letter stating its view of acceptable and unacceptable policies for climate change legislation.
Sen. John Kerry (D-Mass.) characterized this letter as a potential "Nixon to China moment", a possible breakthrough from the Chamber’s hard-line opposition to real climate change legislation. After all, it was only a few months earlier that the Chamber filed a petition for a trial on climate change science, with one executive calling it a modern day "Scopes monkey trial."
The Chamber’s line in the sand was stated in the letter:
"The Chamber will continue to oppose bad policies that resemble the failed climate proposals of the past, such as bills that jeopardize American jobs, create trade inequalities, leave open the Clean Air Act, open the door to CO2-based mass tort litigation, and further hamper the permitting process for clean energy."
The group has provided a few clues over the past few months as to what it means by the phrase, "open the door to CO2-based mass tort litigation." Those clues can help decipher whether the Chamber is actually open to climate action or deems the science a frivolous figment.
One clue is that the Chamber views the EPA endangerment finding on greenhouse gases for the Clean Air Act as one of those "bad policies" that might "open the door" to climate change litigation. In a 21-page supplemental statement to support the "Scopes monkey trial," the Chamber also maintained that claims about climate change impacts on public health and welfare, such as higher death rates, were "spurious."
The Chamber’s climate change blueprint provides another clue. It says a number of federal laws — such as the Clean Water Act, the Coastal Zone Management Act, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) — should be restricted in order to "Reduce overly burdensome regulations and opportunities for frivolous litigation."
While the Chamber acknowledges citizens and groups have a right to participate in administrative and judicial proceedings regulating the energy industry, it does not appreciate that permit review and appeals process can delay or terminate projects. Thus, the Chamber supports imposing "hard deadlines" on administrative and judicial review of permit decisions.
Another favored reform is to provide a categorical exclusion for some energy projects to exempt from the need to conduct an environmental assessment or impact statement of the project under NEPA. And, the Chamber opposes the use of ESA to list endangered or threatened species, such as the polar bear, as a "backdoor way" to limit energy exploration and impose "climate change policy restrictions."
The Chamber is also concerned about provisions in the House-passed American Clean Energy and Security Act (ACES).
In a letter to the House of Representatives in June shortly before the ACES vote, the Chamber objected to the "findings and purposes" of ACES that included "broad, aggressive statements regarding injuries from greenhouse gas emissions [because] codification of these findings could be used to generate mass tort litigation."
The Chamber also objected to the "state attorney general" provision as potentially allowing "frivolous and unnecessary litigation" if "non-federal actors" have a "substantial role in enforcing federal laws because it seeks to "reign in activist attorneys general."
The Chamber is concerned about cases like Connecticut v. American Electric Power, in which a court allowed a public nuisance lawsuit to proceed against "businesses for their contributions to global warming." Eight state attorneys general sued fossil-fuel power plants to abate their continuing contributions to the "public nuisance of global warming" by emitting 650 million tons annually of carbon dioxide that is and will "continue to cause serious harms affecting human health and natural resources." The attorneys general want to abate the nuisance and force the power companies to cap and then reduce their carbon dioxide emissions.
The Chamber might not appreciate Comer v. Murphy Oil, a decision last month upholding the rights of residents and landowners on the Mississippi Gulf Coast to proceed with a putative class action lawsuit against 30 oil and gas companies seeking compensatory and punitive damages based on nuisance, trespass and negligence.
The plaintiffs alleged that defendants emitted greenhouse gases that contributed to global warming that caused rising sea levels and increased the intensity of Hurricane Katrina, resulting in the destruction of public and private property.
A similar lawsuit was dismissed by the lower court but is now on appeal to the Ninth Circuit. In Native Village of Kivalina v. ExxonMobil, inhabitants of a coastal Alaska village sued 24 oil, energy and utility companies for damages on a nuisance claim based on excessive emissions of greenhouse gases that caused climate change impacts now damaging the village.
Global warming has now diminished the Arctic sea ice that functioned as a barrier, exposing Kivalina to coastal storm waves and surges that have eroded the village into an uninhabitable state requiring relocation at a cost of $95 – $400 million.
The Chamber is still apparently not concerned about climate impacts when it characterizes lawsuits to obtain accountability as "frivolous" and seeks to reduce or eliminate the right of access to courts to obtain remedies.
Indeed, the Chamber’s veil of sincerity evaporated when it filed suit a week before its Nixon-to-China letter to obtain redress against the Yes Men for punking the Chamber with a prank press conference to announce it no longer opposed the climate bill.