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Warming Up to Climate Change Litigation

There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. Nor was there much question that Justice Anthony Kennedy would provide the pivotal swing vote. On many of the issues before the Court, the remaining justices were sure to be evenly divided. Justice Kennedy has shown an uncanny ability to find himself in the majority in close cases—environmental cases in particular —and this would be no exception.

The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA. Under the Court’s new interpretation, the Clean Air Act (“CAA” or “the Act”) provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere.

The federal government did much to facilitate this course. At least since Clinton EPA General Counsel Jonathan Cannon first suggested EPA’s preexisting regulatory authority could reach greenhouse gases, various agencies laid the groundwork for the eventual regulation of greenhouse gases. Even during the second Bush Administration, EPA has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause.

Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including utilities and industrial facilities) are sure to follow. In time, however, Mass. v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the CAA. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation—and yet still do little to cool down a warming planet.

The Hurricane Katrina Insurance Claims

The insurance issues that arise in connection with mass torts have been studied with some care. These issues most often involve corporate claims for coverage under Commercial General Liability (“CGL”) insurance policies. The insurance issues that arise in connection with what might be called “mass disasters,” however, have received less attention. These are natural and man-made disasters whose center of gravity is not tort, and therefore not liability insurance, but personal and property losses. The mass disaster that occurred on 9/11 did spawn a variety of non-liability insurance disputes. But even these disputes mostly involved different forms of corporate insurance, such as commercial property and business interruption coverage claims.

The losses that arose out of Hurricane Katrina in August 2005, in contrast, heavily involve individual insurance issues. In particular, tens of thousands of homeowners whose residences were damaged or destroyed by the hurricane had standard homeowners insurance. These policies insure the risk of direct physical loss to the policyholder’s home and other property, subject of course to certain exclusions from and limitations on coverage. The key exclusion in this instance precludes coverage of loss resulting from “flood.” The typical policy also contains an anti-concurrent causation clause, which provides that excluded losses (such as those caused by flood) are not covered “regardless of any other cause or event contributing concurrently or in any sequence to the loss.” Claims made for Katrina-related losses under these seemingly simple policy provisions have spawned widespread litigation and controversy. This Essay briefly surveys these issues and comments on their implications for the availability of insurance coverage in the future.

Unequal Treatment of Religious Exercises Under RFRA: Explaining the Outliers in the HHS Mandate Cases

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services (“HHS”) has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act (“RFRA”). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA’s protection.

The analysis in these cases is turning largely on whether courts find that the HHS mandate imposes a “substantial burden” under RFRA. RFRA prohibits the government from imposing a “substantial burden” on a person’s religious exercise unless the government proves that imposing the burden is the least restrictive means of advancing a compelling government interest. To date, every court to find a substantial burden has entered a preliminary injunction. Thus, determining whether or not the mandate imposes a “substantial burden” is crucial to the outcome of these cases.

Why have six courts denied relief while most other judges have granted it? One part of the answer is that these courts have wrongly concluded that religious liberty rights disappear when an organization earns profits—an error I have discussed at length elsewhere.

This essay will explore a second error made by these outlier courts in applying RFRA’s “substantial burden” test. Properly understood, RFRA’s “substantial burden” analysis examines whether the government is coercing a believer to abandon a religious exercise (i.e., religiously-motivated conduct or abstention from conduct). Once sincerity of the religious motivation is established—an issue the government has not been contesting in the mandate cases—the underlying religious reasons for the religious exercise should be entirely irrelevant.

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