Vermont Law Professor Patrick Parenteau began his lecture by acknowledging that although litigation cannot effectively address the problem of climate change, legal tools can provide a stopgap measure for the short-term.  They also provide remedies that can help to address damages suffered by people in the face of climate change.  Parenteau reviewed the major laws and legal tools affecting climate change.   These included:

a) Mass v. EPA:  By declaring that the EPA has the authority to regulate greenhouse gas emissions, the Supreme Court essentially forces the EPA to provide compelling reasons for its decision to not enforce them.  Parenteau argued that this decision puts us farther down the road to more comprehensive climate change regulations, which will probably include a national climate change bill and cap and trade legislation.
b) The National Environmental Policy Act (NEPA): While this act does not mandate particular behaviors or implement new regulations, it has been used to influence and modify environmental behavior.  Parenteau suggested that NEPA might be used to push for higher energy efficiency standards in cars.
c) Environmental Impact Assessments: EIAs are the “action-forcing” mechanism of NEPA, which requires corporations and individuals to fully explore the environmental impact of any planned project or environmental modification.
d) The Endangered Species Act: With regards to climate change, the ESA might be used to call for tighter emissions standards on behalf of the polar bears and other threatened arctic animals.  Parenteau acknowledged that the ESA is not the ideal tool to influence decision-making about climate change, but that in the absence of a better tool, the ESA can be effective.

Parenteau also explored several theories of liabilities that address the essential question, “Who pays?”  Some of his suggestions were not particularly surprising, including strict liability and negligence.  Others seemed a bit more far-fetched, such as trespass, product liability and nuisance.  Parenteau acknowledged that some might be more successful than others, but stressed that each theory of liability is a tool that can be used under different situations to accomplish the same goal.  He used the barrier island village of Kivalina as an example to explain how each theory might be utilized.  He also drew comparisons between climate change litigation and tobacco litigation, explaining how the market theory of liability might be used to determine how to divide responsibility and assign penalties to big emitters.  Parenteau acknowledged that assigning liability to climate change damages would be a challenge with many obstacles to recovery, including standing, preemption and causation.  Parenteau believes that the current lawsuit brought by villagers from Kivalina against major emitters is perhaps the most interesting and promising climate change litigation case.  He explained that, because the villagers are affected by climate change differently than the rest of the world, they have special standing to bring this case to court.   While he thinks the case may be successful, he believes it will take years to resolve.  So while a successful outcome in this case may be advantageous to the world community, taking a settlement and using it to relocate their village might better serve the villagers. 

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