USA – CALIFORNIA Law and Practice Contributed by: Kim Bick, Alan Bick, Corrie Plant and Tyler Alexander, Bick Law LLP
12.5 Investigating Environmental Accidents The California Department of Toxic Substances Con- trol (DTSC) carries out site inspections and responds to hazardous substances releases, including on an emergency basis. If DTSC cleans up a contaminated site, the agency will seek to tax those costs back to potentially responsible parties through a cost recovery action. Companies may also pursue voluntary cleanup agreements with DTSC and potentially avoid costly civil penalties. In some counties, DTSC delegates its inspection authority to Certified Unified Program Agencies (CUPAs), which report to DTSC. 13. Climate Change and Emissions Trading 13.1 Key Policies, Principles and Laws California is a leader in combating climate change and curbing the GHG emissions. Starting with AB 32 in 2006 – which required California agencies to reduce climate pollutants to 1990 levels by 2020 – California has consistently worked towards reducing climate pollutants. The California Air Resources Control Board has jurisdiction to regulate sources of GHG emissions in California and works to achieve state emissions reduction goals. California has taken a multi-pronged approach to com- batting climate change. In addition to the corporate disclosure requirements discussed above, California’s cap and invest programme seeks to reduce GHG emis- sions by private actors through steady increases in the price of climate pollution. The programme implements a statewide cap on GHG emissions, forcing emitters to either pay more for emissions allowances or reduce their emissions. Covered entities are subject to report- ing and verification requirements. And revenues from cap and invest are deposited in the California Climate Investments programme, which funds projects aimed at reducing climate change. 13.2 Targets to Reduce Greenhouse Gas Emissions California has ambitious goals to cut GHG emissions in coming years. Following the success of AB 32, SB 32 aims to reduce GHG emissions to 40% below 1990 levels by 2030 and AB 1279 seeks to achieve carbon
The potentially responsible parties may, in turn, seek contribution from each other for the cleanup costs. Courts have broad discretion in equitably allocating costs among multiple potentially responsible parties. 12.4 Proceedings Against Polluters Both federal and state law provide causes of action for government agencies and aggrieved parties to pursue claims against polluters. To initiate and main- tain proceedings in federal court, a plaintiff must have “standing” throughout the case, a doctrine that flows from Article III of the US Constitution’s “cases or con- troversies” limit on federal court jurisdiction. Standing comprises three elements: • injury-in-fact – the plaintiff must have suffered (or face an imminent) legally-recognised harm; • traceability – the plaintiff’s injury must have result- ed from the alleged actions of the defendant; and • redressability – the court must have the power to remedy the plaintiff’s injury. In addition, the case must not become moot before a final resolution and, for statutory claims, the plaintiff’s harms must fall within the zone of interests Congress sought to protect through passing the law. California law imposes similar requirements. State courts are not subject to Article III’s jurisdictional limits and the California Constitution lacks a parallel case-or-controversy requirement. California generally requires that the plaintiff has suffered some injury and so is motivated to adequately develop and represent the issues to the tribunal. Unlike in federal court, how- ever, the California legislature may – by statute – per- mit individuals to sue and seek statutory remedies even if they have not suffered any concrete harm. In practice, standing requirements are not usually dif- ficult to meet in environmental cases; a neighbour- ing landowner whose property is contaminated by a release of a hazardous substance or a member of the public whose use and enjoyment of public lands is diminished by an improperly issued permit will have standing to sue.
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