In Debate on Waxman-Markey, a Question on Avoiding Liability for Violating the Law

A coalition of conservative and moderate Democrats has recommended deleting section 336 of the Waxman-Markey climate change bill because of “concern among industry about potential new liability for any emitter” under that provision (see the proposed amendments). Some polluters' objective, apparently, is to avoid liability for violating the law, and they recommend this deletion as a step toward accomplishing that goal.

But section 336 does not create any liability, new or old. Section 723 of the Waxman-Markey bill does that, quite appropriately, by establishing penalties for failure to meet targets or purchase sufficient allowances. And the liability in this other section does not apply to “any emitter,” but only to emitters that violate the law by failing to reduce greenhouse gas emissions.

The whole notion that new obligations should create no new liability for violators, if accepted, would convert this bill from a mandatory cap and trade bill to another Bush Administration voluntary program. Industry concern about “potential new liability” should not be reason to amend a climate change bill at this point in the history of the world.

Section 336, however, has a much narrower effect. It attempts to preserve citizen standing in cases involving violations of climate change legal requirements by specifying that affected citizens may sue based on the potential contribution of a legal violation to global climate disruption. Without this provision, courts are more likely to make current law authorizing citizen enforcement of environmental law a dead letter in the climate change context.

Section 336 seeks to preserve citizen standing in two classes of cases, judicial review of agency actions, such as EPA rulemaking on climate change, and citizen suits. The first class of cases, judicial review, does not involve suits against industry. It is common for both industry and citizen groups to sue EPA when they believe that EPA has promulgated rules that do not conform to a statute. But growing hostility to environmental groups in the courts has created a possibility that courts may allow industry to sue when EPA acts illegally, while prohibiting environmental groups from suing. This part of section 336 signals the courts that Congress views citizen standing in global warming cases as appropriate, thereby preserving a level playing field. If industry can sue and citizen groups cannot, industry will have enormous leverage to defeat effective implementation of the law.

Section 336’s second class of cases, citizen suits, often does involve lawsuits against polluters who fail to meet statutory requirements. But citizen suits also serve the function of enforcing deadlines for EPA actions. Absent such suits by citizens against federal agencies, polluters can often pressure those agencies into long delays in carrying out statutory mandates, which might be disastrous in the global warming context. Eliminating section 336 would wipe out an effort to preserve citizen standing in cases forcing the agency to carry out statutorily required activities.

Of course, section 336 also does seek to preserve citizen standing to enforce pollution control requirements for greenhouse gas emissions (suits against polluters), thereby putting efforts to address global warming on a par with previous efforts to address other environmental problems (see Nina Mendelson's earlier post on how citizen suit provisions are the norm in environmental regulations ). Government enforcement resources are pitifully inadequate for existing environmental problems. When we add global warming to EPA’s agenda, a problem that stems from huge groups of emitting sources, and authorize trading, which makes enforcement more complicated, this problem will grow worse. Citizen suits help alleviate this problem by supplementing government efforts. Furthermore, this bill is designed to guide an effort over more than four decades. Citizen suits can compensate for deliberate non-enforcement during periods when the executive branch refuses to enforce the law, because of its ideology or special interest capture.

Section 336 helps provide for the enforcement of law and would help make for a more level playing field for citizens and concerned groups working to hold industry accountable. Removing the provision would only serve to weaken the law.