Dealing with Climate Change Winners and Losers

by Grace Renshaw William Airhart

William Airhart '12 won the Tennessee Bar Association's 2012 Jon E. Hastings Memorial Award, which recognizes scholarship in environmental law, with a paper proposing that the social cost of carbon (SCC) be accepted as a means to satisfy a key requirement of a successful tort lawsuit: a reliable method to establish a damages claim.

Airhart's interest in the intersection of climate change and tort law arose from discussions in a seminar class regarding regulation, compensation and fairness. "Over the next century, climate change is going to create winners and losers, and some of these losers will not be compensated in a regulatory regime with broad applicability," he said. "Compensation is one of the traditional goals of tort law, and I wanted to explore whether future litigants will have any viable tort options. The SCC metric is one possible avenue to satisfy the harm requirement of a climate change tort."

His winning entry in the Hasting competition, "After AEP: The Climate Change Tort and the Social Cost of Carbon," was condensed and refined from a research paper he wrote for Professor Michael Vandenbergh's Climate Change Justice seminar in fall 2011. However, although Airhart's paper asserts that the Court's jurisdiction holding in AEP will allow plaintiffs to continue to bring climate change tort claims in state court, he does not believe these individual suits will be easy to win. "Tort law is not easily compatible with climate change, because it requires a tricky demonstration of elements like causation and duty," he said. "Most practitioners and academics believe that it is nearly impossible to win a climate change tort case. My paper isn't intended to address these concerns; my proposal is limited to the harm element of a traditional tort."

His proposal is rooted in an analysis of the Supreme Court's 2011 decision in American Electric Power Company v. Connecticut (AEP), in which eight states, New York City and three land conservation groups filed suit against four electric power companies and the Tennessee Valley Authority, arguing that the utility companies were a public nuisance because their carbon dioxide emissions contribute to global warming. In that decision, the Court ruled in part that the federal Clean Air Act displaces "any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants."

To reach that holding, however, the Court first upheld the lower court's exercise of jurisdiction over the dispute. Airhart asserts that the Court's jurisdictional holding "leaves the door open to climate change plaintiffs alleging state tort claims," because only federal claims are now displaced. His paper suggests that climate change tort plaintiffs "may survive threshold review and proceed to adjudication on the merits. In other words, the climate change tort remains alive and well in state courts, if...a plaintiff can craft a successful tort suit that makes a colorable damages claim."

He then argues that the SCC metric used by federal agencies to calculate the costs and benefits of various government actions may serve as a credible means of calculating damages for the purposes of a tort suit. "Reliance on the SCC metric will produce damage calculations that are consistent, comparable and predictable across the country," he writes, "and it will ensure that tort law remains an important component of the future regulation of greenhouse gasses."

The Hastings Award honors the late Jon Hastings, a founding member of the Environmental Law Section of the Tennessee Bar Association and an attorney with Boult Cummings Connors & Berry.

Airhart plans to join the environmental practice group at Baker Botts in Houston, Texas, as an associate this summer.

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