Resist regulations, will you? Take these lawsuits!

By Floy Lilley, J.D.
December 17, 2004

Being in this United Nations gathering is like being in a James Lee Burke novel with character Dave Robicheaux. As a reformed alcoholic, Robicheaux has to come to grips with the abiding anger that makes him seek out violent situations. His self-analysis is that he rips himself apart so he can get back on the bottle.

Dysfunction is with us even now. Environmentalists explode in delight when the U.S. gets stabbed. They virtually screamed out that they could not believe that the U.S. has not yet been forced to step off the planet at a side event on lawsuits last night.

After all, so the claim goes, the U.S. killed thousands with a heatwave in Europe in 2003 and is killing an entire Eskimo civilization now.

It's time to bring in the lawyers.

Until now, most of the legal focus has been on regulations, but litigation in relation to greenhouse gas emissions is increasingly likely, and has already started. Over this summer, eight U.S. states and New York City filed a lawsuit against five U.S. power companies for their contribution to climate change.

"Preliminary studies suggest that a substantial fraction of our current elevated level of carbon dioxide might be traced to products produced, sold or used by only a few dozen major companies. The argument over who pays for the cost of climate change is here to stay," insists Ken Alex, attorney in the California Attorney Generals office.

The plaintiffs know states cannot interfere with international treaties, but the lawsuit is supportive of the Framework Convention on Climate Change, so who can call it interference. And, no, lawyers know states cannot override federal law, but the EPA has never made the Clean Air Act cover carbon dioxide as a pollutant, therefore CO₂ is fair game for this lawsuit.

The California suit has been filed in federal court. The suit seeks injunctive relief only because attribution of real damages is much harder to prove, but the point would be made that global warming is indeed caused by human forcing.

The defendants' emissions, primarily from coal-fired power plants, represent ten percent of all U.S. CO₂ emissions. Under public nuisance law, the lawyers intend to show that the activities of the defendants cause threats of some injury to the public and that the defendants are aware of this threat.

The relief desired by this case which was filed in August will be to make the defendants reduce their CO₂ emissions and to make them issue a declaration that acknowledges that they know that CO₂ causes global warming. That declaration will then be used in other cases.

Finding Attribution

An article titled "The blame game: Who will pay for the damaging consequences of climate change?" [NATURE, 2004. www.nature.com/nature] by Myles Allen and Richard Lord provides a commentary on attribution – that legal necessity which shows causation. Stott, Stone and Allen subjected the European heatwave in the summer of 2003 to their models and statistics as they estimated the probability or risk of occurrence of a certain weather event under natural and under modified climatic conditions.

Allen says he is three-fourths confident that human contribution to climate change, above natural variability, was causative of the 22,000 - 35,000 heatwave deaths. Yes, a heatwave is weather, but Allen says that one can blame climate when you can attribute the increased risk to human influence on climate. He assured attendees, that heatwaves would be more frequent in Europe. Allen concluded, "Humans have loaded the weather dice."

Then the Ice broke

It was time to sue somebody when the Inuit, or Eskimos, starting falling through the ice, so the Inuit sued the United States for not having ratified the Kyoto Protocol.

All ecstasy broke out among environmentalists. Someone was socking it to the U.S.. The lawsuit provided the highlight of the entire two-week conference.

Inuit are aware that this international approach of theirs through the Organization of American States provides no damages paid them, but they do not seek damages. They seek world awareness. Tobacco litigation took forty years for world awareness. The Inuit may not have forty years to wait for Climate Change awareness, but they have already gotten everyone's attention today.

This litigation side event concluded with the scary claim that "it was lawyers who brought the UNFCCC together and lawyers who got the IPCC to work and lawyers who are putting this climate change process back on track."

Heaven help us when lawsuits are our finest responses to nature.