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.
The U.S.\''s dirtiest power plants
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
, 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.
" 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.
Filn 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."