The growing scientific consensus on global warming may prompt more than high-level policy decisions. It could also trigger more lawsuits.
Earlier this month, the UN's Intergovernmental Panel on Climate Change concluded it is "very likely," that is, at least 90 percent probable, that human activity causes global warming. This percent is higher than the panel's previous report, released in 2001, which had set it at 66 percent. The increased confidence gives accused greenhouse polluters less wiggle room, legal experts say.
"We're entering a new era," Audley Sheppard, an international law specialist in Britain, told Reuters in a Feb. 2 story.
"He said major emitters of greenhouse gases could no longer argue they were unaware of the risks....
" 'Carrying on with business as usual could be viewed as negligent in future,' he said. Until now, countries or firms could say there was doubt because the U.N. climate panel had been just 66 percent sure of a link to human activities."
Several climate change lawsuits are in the works in the US. Perhaps the most far-reaching is Massachusetts v. Environmental Protection Agency, now pending before the US Supreme Court. In 1999, Massachusetts and 11 other states sued to force the EPA to regulate greenhouse gases under the Clean Air Act. The EPA claims that greenhouse gases do not fit the legal definition of "air pollution," and that there is still too little scientific certainty about global warming to take action. The case was argued in November, and a ruling is expected in June.
The ruling will affect the extent to which states can set their own climate policies, which is currently a murky area.
In California, Attorney General Jerry Brown signaled on Feb. 1 his commitment to a lawsuit that his predecessor launched in September 2006 against the "big six" automakers – Ford, GM, DaimlerChrysler, Toyota, Honda, and Nissan. The suit alleges that they have contributed to global warming, which damages the state's resources. But in what some see as an olive branch, Mr. Brown has also asked to meet with the automakers to "discuss ways to fight global warming without conflict," according to Brown's office.
His request came two weeks after a federal judge postponed trial over a suit brought by auto interests to block a 2004 California law that regulates tailpipe emissions of greenhouse gases. In his decision to delay the trial, US District Judge Anthony Ishii said it was best to wait until the Supreme Court ruled on Massachusetts v. EPA.
The EPA isn't the only federal agency facing this kind of lawsuit. On Feb. 13, two conservation groups sued the US Fish and Wildlife Service, claiming that it failed to consider global warming when drafting rules for oil and gas exploration in Alaska's Beaufort Sea. The suit cites studies showing that shrinking Arctic ice disrupts polar bear and walrus populations. Biologists have found that some bears are literally drowning because of melting ice shelves.
Arctic melting affects more than polar bears. On Feb. 9, The Independent, a British daily, reported that the Inter-American Commission on Human Rights in Washington will hear testimony from the Inuit Circumpolar Conference. The conference, which represents indigenous groups in the United States, Canada, Greenland, and Russia, claims that global warming is destroying their way of life.
The practice of litigating to influence climate policy has its critics. In a Feb. 15 Op-Ed in the San Francisco Chronicle, M. David Stirling and Timothy Sandefur of the Pacific Legal Foundation (which, according to Greenpeace has accepted more than $100,000 from ExxonMobil since 1998) criticize Jerry Brown's emissions suit, saying such matters are best left to legislatures:
"The people of California expect their elected representatives – not life-tenured federal judges – to handle environmental regulation."
In the past, some federal judges have been aware this potential for overreach. In 2005, a US District Judge dismissed a public nuisance suit brought by a coalition of states against America's largest power companies for their role in contributing to global warming. Judge Loretta Preska wrote:
"[C]ases presenting political questions are consigned to the political branches that are accountable to the people, not to the judiciary, and the judiciary is without power to resolve them."
Even if the separation of powers arguments could be resolved, it's difficult to ascribe damages to global warming. Climatologists constantly point out that climate change can't be tied to any specific event. And even if it could be, who is ultimately responsible? Companies, governments, consumers, or all three?