Climate change litigation has been hot during the Bush administration-but since 2003, most of the cases have been coming from states and private parties. That year, the Environmental Protection Agency ruled that carbon dioxide is not a pollutant that can be regulated under the federal Clean Air Act. State attorneys general and environmental advocacy groups have tried to use the courts to crack down on greenhouse gas emissions ever since. But the right of states and private parties to use litigation to stand in for the EPA or prompt federal regulation remains un-clear.
“We’re at a watershed in that there is so much interest in litigation associated with climate change, given the vacuum of regulation at the federal level and the fact that the states feel stymied and uncertain as to what authority they have,” says Mark Elliot, an environmental litigation partner at Pillsbury Winthrop Shaw Pittman who successfully represented the Association of American Railroads in a suit to invalidate California state laws regulating air emissions from locomotives. (The case is now on appeal before the U.S. Court of Appeals for the Ninth Circuit.)
