Last Thursday, Attorney Matt Wessler ’01 returned to the College to give an address about “Climate Change and the Courts: When Congress and the President Fail to Act.” Wessler litigates precedent-setting cases on behalf of American citizens as a staff attorney for Public Justice, a public interest law firm headquartered in Washington D.C.
Wessler began his speech by posing a question about the federal motivation to fight climate change. “What happens when neither the legislative or executive branch has an incentive to work to combat climate change?” he asked. He suggested that Americans should look toward the courts to step in. At Public Justice, Wessler has been involved in several influential cases dealing with the environment practices of companies and governmental agencies.
Wessler outlined the four elements of a legal case: a plaintiff, defendant, legal theory and remedy. In cases addressing climate change, the plaintiff is generally a city, state or organization, while the defendant is usually a major carbon dioxide emitter or governmental agency. The plaintiff must present a legal theory, a means to hold the defendant accountable and a remedy, either in the form of damages to be paid to the plaintiff or an injunction designed to force the defendant to suspend their harmful ongoing conduct. Wessler then explained the three threshold questions that are “critical for any case to go forward.” First, the court must rule on the standing of the case, determining if there was an injury to the plaintiff, if the defendant caused the injury and if the remedy is sufficient to warrant a hearing. Next, the court must determine if they have the judicial authority to hear the case. Lastly, the court must keep in mind that its ruling cannot displace current federal laws.
Wessler branched out into a discussion of recent federal legal proceedings concerning environmental action. Massachusetts v. Environmental Protection Agency (EPA) is the most prominent example of a case brought to the federal courts with the intent of mitigating the political incentives involved with climate change policy implementation. Several states accused the EPA of not actively regulating carbon dioxide emissions. Once the court ruled against the agency, “everybody thought it would spur the EPA into action,” Wessler said. However, there was “a supreme lag in action by the EPA.”
In the next case brought to the Supreme Court about carbon dioxide emissions, the ruling from Massachusetts v. EPA actually hurt the chances of further action prosecution of against combating carbon dioxide emitters. Lawyers and climate scientists hoped that the 2011 Supreme Court case American Electrical Power Company (AEP) v. Connecticut. would lead to an injunction against the major carbon dioxide producers in America. Instead, the Court ruled that any action taken by the judicial system would be “displaced” by the upcoming regulations prompted by Massachusetts v. EPA. In Wessler’s words, “Mass. v. EPA was a trap. When the Court said the EPA occupies the field [of regulating emissions], they meant it.”
While Wessler was disappointed with the results of the case, he was impressed with Justice John Paul Stevens’s understanding of the science behind climate change. “The EPA made the argument that ‘any action we make would only reduce emissions by a tiny bit,’ to which Stevens replied, ‘the first step might be incremental, but any first step is significant,’” Wessler recalled.
Wessler has shifted his attention to trying a case at the state level. Plaintiffs do not risk displacement in having a case heard in the state courts and thus can avoid problems that squashed AEP v. Connecticut. Wessler looks to cases dealing with producer fraud, such as those involving tobacco companies, as an avenue of progress. Wessler believes that the best chance for using the judicial branch to combat climate change is by “marrying the two paths”: approaching the state courts and framing the case as one of fraud.