Editorial: Climate war has a new front: the courtroom
The little guys are suing energy giants for the effects of climate change – could they succeed in changing US legislation where Congress has failed?
THE remote village of Kivalina in Alaska is the unlikely new front in the war on climate change. It’s early days, but the battle could emulate the one that was fought in American courtrooms against the tobacco industry in the 1990s.
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In February 2008, the village’s 400 or so inhabitants filed a lawsuit against 24 companies. The list of defendants reads like a who’s-who of global energy giants, featuring ExxonMobil, BP America, Chevron and Shell Oil.
The lawsuit is emblematic of a new offensive designed to exert pressure on energy companies. “The war to save the climate will have many, many fronts,” says Seth Kaplan of the Conservation Law Foundation in Boston. With UN climate negotiations stalled and the US cap-and-trade bill in tatters, groups of individuals are turning to the courts. The Kivalina case is just one of three unusual cases that are winding their way through the US legal system (see cases).
The outcomes of these lawsuits are difficult to predict, but victory for the plaintiffs would set a game-changing precedent not just on American soil but also internationally. Other nations and foreign groups could be emboldened to sue corporations in US courts (see editorial, page 5).
The residents of Kivalina say rising temperatures have melted the ice that once protected their town from winter storms, leading to erosion. They claim the energy companies they are suing are responsible for “a substantial portion” of the greenhouse gases that have caused global warming and Kivalina’s “special injuries”. So they are demanding funds to help relocate Kivalina to safer ground. Estimates suggest that this could cost as much as $400 million.
Others seek direct action on emissions, not reparations. , a Massachusetts-based attorney who is representing the inhabitants of Kivalina, is at the forefront of these lawsuits on behalf of individuals, groups and US states. In a high-profile case in which he represents Connecticut, seven other US states and the city of New York, he is using the notion of “public nuisance” – an element of federal common law – to pressurise power companies into cutting emissions. The basic argument goes something like this: if your neighbour is burning waste in his backyard, spewing toxic smoke that is harming you, you can take him to court. Pawa is extending that argument to apply to energy companies.
Connecticut and its fellow plaintiffs are suing five of the biggest greenhouse-gas emitters in the US, including American Electric Power (AEP) and the Tennessee Valley Authority. They want court orders requiring that the power companies start reducing greenhouse gas emissions over the next decade. that the power companies already have the means at their disposal, for instance by changing the quality of their fuels and using new technologies to capture carbon.
If they succeed in reducing emissions from the hundreds of coal-fired power plants operated by these companies, “it would be one of the biggest greenhouse-gas reduction measures ever taken in the US, maybe the biggest”, says Pawa.
“It’d be one of the biggest greenhouse-gas reduction measures ever taken in the US, maybe the biggest”
A win in the Kivalina case would have similar repercussions. “It would establish the right of [some] very discreetly harmed victims to get justice in global warming cases,” says Pawa. People whose homes were flooded due to storms, for instance, would have legal recourse if the damage could be linked to global warming.
These legal fights will be long and littered with hurdles. First, establishing links to climate change is fraught with difficulties. “Global warming is a result of the action of billions of people and companies over the course of more than a century,” says of Columbia University’s law school in New York. “No particular impact can be directly attributed to any particular polluter. You also have billions of potential plaintiffs, in terms of the number of people who are injured. Those are extraordinarily difficult circumstances.”
“You have billions of potential plaintiffs. These are extraordinarily difficult circumstances”
And before such questions can even be debated in court, the plaintiffs must find one that will hear their case. At the moment, that hangs in the balance although there have been some early victories. In September 2009, the Second Circuit Court of Appeals decided to allow the Connecticut vs AEP case to go ahead, but the defendants recently appealed to the US Supreme Court. “We are trying to convince the Supreme Court not to take up the case,” says Pawa.
If the Supreme Court declines to enter the fray, the case will go back to the lower court, where it will enter a discovery phase. This involves defendants and plaintiffs interrogating each other under oath, and could help the plaintiffs establish what the energy companies knew about the link between greenhouse gases and global warming, and for how long. The inhabitants of Kivalina that some companies have “conspired to create a false scientific debate about global warming in order to deceive the public”.
Connecticut vs AEP is not the only case under appeal before the Supreme Court. In the class action suit of Comer vs Murphy Oil, a number of people whose homes and lives were devastated during hurricane Katrina are suing major energy and chemical companies for compensation, arguing that their emissions were responsible for the ferocity of Katrina and the ensuing damage. After much wrangling in the lower courts, the plaintiffs went to the Supreme Court in August. They, too, are awaiting its decision.
“There is a good chance that the US Supreme Court will decide in the next year, and that will either kill all these cases or allow them to go forward,” says Michael Gerrard of Columbia Law School, New York.
He adds that most in the legal community were surprised by favourable decisions that the lower courts accorded the plaintiffs in Connecticut vs AEP and Comer vs Murphy Oil before they were escalated to the Supreme Court. Most legal observers, he says, would not be surprised if the Supreme Court ruled in favour of the defendants.
Pawa remains confident. “Regardless of who the [Supreme Court] judges are who are hearing this, we are going to prevail,” he says. “We have got the facts and the law on our side.”
Cases for and against a greener world
Kivalina vs ExxonMobil
Rising temperatures have melted the sea ice and permafrost that protected the Alaskan village of Kivalina against erosion. Its inhabitants say major energy companies are to blame and want them to pay the cost of moving the village to safer ground.
Connecticut vs AEP
Eight US states and New York City are together suing five of the biggest greenhouse-gas emitters in the US, including American Electric Power. They say their emissions are a “public nuisance” and seek a court injunction forcing the companies’ power stations to adopt cleaner procedures.
Comer vs Murphy Oil
Victims of hurricane Katrina are suing major companies for compensation. They argue that emissions from the companies were responsible for the ferocity of the hurricane.
Texas vs EPA
In 2009, following a case brought by the state of Massachusetts, the Environmental Protection Agency declared that it would begin regulating carbon dioxide emissions. The EPA is now being sued by the state of Texas, the US Chamber of Commerce and others, who claim it used invalid science to determine that CO2 is harmful.
