3 court cases for climate change
Even without a nationwide greenhouse gas law, environmental groups are going after polluters for causing global warming.
NEW YORK (CNNMoney.com) -- Forget all the talk lately about whether Congress will regulate carbon dioxide - a gas generated from burning fossil fuels and one of the main culprits behind global warming. Several individuals and environmental groups are using laws already on the books in an attempt to force polluters to change their ways.
"There are laws in place now that can address this," reads the home page of Climatelaw.org, a web site devoted to tracking global warming cases worldwide. "It is illegal under international law for one State to cause harm to another State.
"It is illegal under domestic law in many countries for polluters to cause nuisances to the public and to market defective products, and damages must be paid," the site says.
In the U.S., plaintiffs are trying three general tactics: Seek monetary compensation for damages caused by global warming, force polluters to clean up by saying they are a public nuisance, and redesign projects currently on the drawing board by applying local laws requiring carbon emissions to be considered in any new development.
So far, no judgments against polluters have been issued. But several cases are pending.
Tactic 1: Go for damages
Forcing energy companies to pay for damages caused by global warming is the boldest tactic, and perhaps the least likely to succeed.
In Mississippi, a group of property owners are suing several energy companies for emitting pollutants which contribute to global warming. Those pollutants, the plaintiffs say, magnified the effects of Hurricane Katrina and are therefore culpable for damage to the destroyed homes.
In the short run, many industry and environmental lawyers agree it'll be hard to win a case like this.
"I think this is a long shot," said Ray Whitman, an attorney who represents energy companies at the Houston law firm Baker & Hostetler.
Whitman said there are too many other factors contributing to global warming - from individuals driving automobiles to pollution from China - to pin responsibility on a handful of companies.
"It's not just an energy company issue," he said. "They may generate a product that exacerbates [global warming], but I don't think you can say they are the main culprit."
But could that change in the future?
The science behind global warming is getting clearer. Earlier this year, a United Nations report compiled by hundreds of scientists from around the world said there was a greater than 90 percent certainty the earth is getting warmer and that human activity is largely responsible. That was up from only a 66 to 90 percent certainty rate found in a similar U.N. report issued in 2001.
"As the science becomes more established, it will be easier to prove these claims," said Fred Zalcman, executive director of the energy project at Pace Law School. "It clearly presents a risk to investors and shareholders."
And while even environmental lawyers concede the Mississippi case is a reach right now, they say polluters could be held accountable in the long run.
"[Energy companies'] behavior today is putting emissions into the air that will be there for the next 100 years," said David Hawkins, director of the climate center at Natural Resources Defense Council (NRDC). "Corporate lawyers and CEO's do need to be concerned with lawsuits seeking damage."
Energy-company attorney Whitman disagrees. Even in the long run, energy companies' balance sheets shouldn't be affected by lawsuits over climate change, he said.
"There is no foreseeability by the energy companies," he said. "I doubt the effects of this litigation is factored into the value of any of these companies."
Tactic 2: What a nuisance
A second strategy focuses on forcing polluters to clean up, not pay up.
A consortium of environmental groups and state governments is suing five big utilities for their part in global warming.
Filed in New York in 2004 and known as Connecticut vs. American Electric Power, the suit argues the utilities are causing a public nuisance by emitting greenhouse gases.
But instead of seeking monetary damages, the plaintiffs want the utilities to emit less pollution in the future by either building natural gas power plants, installing more pollution control devices, or promoting conservation.
The suit was dismissed by a lower court in 2005 and is currently on appeal.
Hawkins at NRDC, which filed a brief supporting the plaintiffs in the suit, said the lower court felt the issue would be better settled by Congress, and was also concerned that the global nature of climate change left the suit beyond the scope of the court.
But he's confident a recent U.S. Supreme Court ruling that basically directed the Environmental Protection Agency to regulate greenhouse gases will bode well for the Connecticut case on appeal.
While some experts say this tactic is more likely to succeed than suing for damages, they still say there's too many other variables involved for the case to win in court.
"To fixate on any one particular industry or company won't be particularly fruitful," said Jeff Leppo, a lawyer and head of the climate change initiative at the Portland, Ore.-based law firm Stoel Rives. "This is a global problem."
Hawkins disagrees: "Just because a problem has a number of contributors, that's never been a reason for a court to deny relief."
Tactic 3: Act locally
A third tactic, and the one considered most likely to win in court, is to use local laws to alter pending developments.
The California-based Center for Biological Diversity, an environmental group, is at the forefront of this movement.
The group is currently suing the California city of Perris for approving a shopping center without taking into account the plaza's carbon footprint, mostly from 40,000 daily vehicle trips the Center estimates the mall would generate.
The group said California law requires such projects to consider measurers to reduce global warming, and regulators failed to enforce it.
"It's a fantastic opportunity to look at solutions on a local scale," said Kassie Siegel, climate program director at the Center.
Kassie said she wants the developers to consider things like pedestrian foot paths and bridges, solar cells on the roof, and better links to public transport in the project.
"Legal liability changes behavior," she said. "And behavior has got to change."
As for national or global laws on carbon dioxide, NRDC's Hawkins said the measures currently being employed in the courts could work in conjunction with a federal carbon cap.
In fact, some believe these lawsuits are designed to force the federal government's hand.
If controls must be enacted, industry typically prefers uniform federal regulation than to have to follow a patchwork of state ordinances or defend themselves from a variety of charges, experts say.
"It's designed around building public pressure and momentum to get a national policy, and maybe eventually a global policy," said Stoel's Leppo.