Skip to comments.Climate Change Could Be Next Legal Battlefield
Posted on 07/14/2003 11:22:08 PM PDT by bruinbirdman
First it was tobacco and asbestos.Then it was the turn of the food sector. Now litigators have yet another target in their sights: those responsible for climate change.
Two cases have already been launched in the US courts. More are in the pipeline, according to the newly formed Climate Justice Programme. This is a collaborative venture involving lawyers, scientists and more than 40 civil groups supporting the use of the law to combat climate change.
It believes that international and domestic laws - covering human rights, product liability, public nuisance, pollution and harm to other states - will be an effective weapon in forcing emission cuts and make perpetrators liable for the consequences of their actions.
"The potential compensation for climate change impacts would make the tobacco pay-outs look like peanuts," says Peter Roderick, a lawyer working for the Climate Justice Programme.
There is no shortage of potential plaintiffs. If predictions of rising temperatures, floods, droughts, forest fires, rising sea levels, disease epidemics, thawing permafrost and damage to crops and water supplies prove correct, global warming is likely to be the most damaging environmental problem in history.
Their case may have been strengthened by the 2001 scientific report from the intergovernmental panel on climate change, appointed by the United Nations. It concluded that: "Most of the observed warming over the past 50 years is likely [defined as a better than two-in-three chance] to have been due to the increase in greenhouse gas concentrations."
But litigators will need to overcome serious obstacles if climate change-related damage is to become the subject of billion-dollar lawsuits.
First, who is responsible?
The companies that sell fuel or those of us who burn it in our cars, homes and factories? How can any particular emitter be held legally responsible for a problem caused by so many people?
Second, who should be compensated? The billions of people who will be affected? Or just those who face the severest losses?
Third, how can any particular disaster, such as a flood or crop failure, be blamed on man-made climate change? At present, scientists insist that it is impossible to attribute any particular weather- related event to climate change - in spite of their confidence that climate change is making extreme weather events more likely.
These issues present formidable, but not insuperable, barriers to successful legal action. Writing in the Columbia Journal of Environmental Law recently, David Grossman, a Yale graduate, concluded that: "Some tort-based climate change suits have strong legal merits and may be capable of succeeding."
He thinks that coastal states, island states and nations, the State of Alaska and Alaskan villages could all be promising plaintiffs. Potential defendants could be fossil fuel companies, electric utilities and car manufacturers, whose liability could be apportioned according to their product's carbon content or market share.
The difficulties of making a connection between global warming and specific environmental effects could be resolved using a statistical approach, according to Myles Allen, an Oxford physicist, writing in Nature earlier this year. With advances in the understanding of climate change, scientists might be able to determine that, say, the flood risk in a certain area had increased by a factor of 10. It might then be reasonable to attribute 90 per cent of the damage of a particular flood to past emissions.
For the moment, a company is unlikely to be successfully sued merely because of its greenhouse gas emissions, in the view of James Cameron of Baker & McKenzie, the international law firm.
He warns, however, that its risk could be greatly increased if it were deemed to have acted culpably by, say, lobbying against greenhouse gas regulations.
Companies that delay taking action on climate change are also at risk of being sued by their investors. They could be accused of incurring higher costs as a result of unduly delaying emission reductions, damaging a company's reputation and failing to disclose investment-relevant information.
"Shareholder actions might follow, claiming that directors and officers of such companies should be liable for not adequately addressing the potential threats brought by climate-change related regulation," according to Swiss Re, the reinsurer that is concerned about the implications for directors and officers' liability insurance.
As well as pursuing direct legal action against companies, litigators are focusing on regulators and agencies. In February, the states of Connecticut, Maine and Massachusetts filed a suit against the US Environmental Protection Agency under the Clean Air Act for failure to regulate carbon dioxide, the main greenhouse gas.
Last August, a lawsuit was launched against the Overseas Private Investment Corporation and the Export-Import Bank of the United States by Friends of the Earth, Greenpeace, some affected individuals and the cities of Boulder, Oakland and Arcata, which are worried about water supplies, floods and wildfires.
They accuse the agencies of failing to conduct environmental reviews before financing projects that contribute to global warming. OPIC will not comment on the litigation but it says that its power projects are predominantly natural gas, hydro-electric and geothermal, which are not a main contributor to climate change. Friends of the Earth's response is that this ignores the long-term cumulative impact of their operations.
Could the US itself join these agencies in the dock? Last September, the tiny Pacific nation of Tuvalu, which fears it will drown under rising sea levels within 50 years, threatened to bring a lawsuit at the International Court of Justice in The Hague against the US and Australia.
This approach would be complicated because the US is not subject to compulsory jurisdiction by the court. But there are several feasible options for bringing a case against the US in the International Court or other international forums, according to a recent paper by Andrew Strauss of Widener University Law School.
He concludes that the US rejection of the Kyoto protocol and its status as the world's single largest emitter of greenhouse gases make it "the most logical first country target of a global warming lawsuit in an international forum".
Some of the bolder lawsuits being considered may seem too radical to succeed in the courtroom. But there is a sense of urgency on the part of would-be litigators trying to bring the force of law to bear on greenhouse gas emissions. They are anxious that the long gap between the first tobacco litigation and the first verdict sustained on appeal should not be repeated.
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This lawyer reveals what it's all about--they think they're going to get filthy rich off this. The b**tards! And they wonder why lawyers have such a repugnant reputation.
Where is this going to end? Once upon a time, being a lawyer was a respected profession. Now it seems as if only bottom-feeding sucker fish become lawyers.