Climate change battle fought in courts

Associated Press
Friday, September 21, 2007 (London)

In Australia, environmentalists use the courts to challenge a proposed mine. California sues carmakers seeking damages for environmental effects of their vehicles. Arctic Inuits file a petition claiming US carbon emissions are violating their human rights by melting polar ice.

Around the world, greens are increasingly taking their battle against global warming to the courts. While obstacles are enormous, plaintiffs are making headway in some cases, and the lawsuits are ratcheting up pressure on politicians to impose mandatory curbs on emissions and forcing companies to change their products or improve their public images.

In the last two weeks alone, greens have won one court battle in the US and lost another, and have also lost one in Australia.

Some hope such lawsuits will be as effective as the threat of obesity lawsuits were against some soft drink and junk food makers, causing them to modify products. Companies such as Boeing and General Motors already are using advertisements to boast about the fuel efficiency of their new planes and cars, saying they produce less CO2 than earlier models.

Other environmentalists are even more ambitious, hoping that class-action lawsuits against wealthy corporations that pollute could one day be as effective as past litigation against tobacco and asbestos companies.

''Judges are finally starting to accept what scientists have long said: that greenhouse gas emissions are causing climate change and need to be reduced,'' said Peter Roderick, co-director of Climate Justice Program, an activist group in London.

Big victories

Few, if any, of the cases have led to big victories, leading some analysts to call them quixotic and predict they will be as unsuccessful as suits that US cities filed to try to hold gun makers responsible for gun violence. In cases against individual corporations, it is extremely difficult to prove any one company is a villain responsible for environmental damage.

But environmental litigation may already be making progress on a more modest goal: persuading government officials and more citizens to call for action against global warming.

''The main purpose of litigation may not be to persuade courts to determine greenhouse gas emission policy, but to attract public attention and pressure governments to reach political solutions, including treaties and domestic law,'' University of Chicago law professor Eric A Posner wrote this year in a paper titled Climate Change and International Human Rights Litigation: A Critical Appraisal.

Hari Osofsky, an assistant professor at the University of Oregon School of Law, said it's important to remember that such litigation is still in its early stages, and that most of it is seeking regulatory action, not damages.

So far, the most effective legal route for green campaigners has been trying to prove that government agencies aren't adequately enforcing existing regulations designed to protect the environment.

That tactic has been tried in Australia and the United States, which didn't sign the Kyoto Accord, and in Canada, which did but has failed to meet its targets for greenhouse-gas emission reductions.

Warming implications

In Australia, one of the world's major coal producers and exporters, a court in Victoria state set a precedent in 2004 by ruling that the state minister for planning had unlawfully told an expert panel to ignore global warming implications when it evaluated a proposed coal mine expansion. The court ordered the panel to reconsider the matter, and the mine expansion was later approved.

In 2006, a judge set another precedent in a ruling about a new mine proposed by Centennial Hunter Proprietary Ltd in New South Wales state that would produce up to 10.5 million tons of coal a year.

The ruling said environmental assessments by such companies must consider all possible effects of greenhouse gas emissions caused by the extraction of coal and production of coal and its use by customers. Centennial did that, and the Anvil Hill Project mine was approved.

However, in August a court in Sydney heard a separate case brought by a community group appealing a federal environment minister's decision that the Anvil Hill Project mine is not controlled by Australia's 1999 Environment Protection and Biodiversity Conservation Act.

The act, the government's principal piece of environment legislation, is designed to protect world heritage sites such as the Great Barrier Reef and Australia's native species and plants. On Thursday, the court dismissed the case, effectively rejecting warnings about the mine's environmental impact.

The lengthy assessment process delayed the mine's anticipated construction by about six months, said Katie Brassil, a spokeswoman for Centennial Coal, the parent company of Centennial Hunter.

Increasing lawsuits

In the United States, a growing number of lawsuits have been filed dealing with global warming.

On September 12, a US district court judge in Vermont ruled that states can regulate greenhouse gas emissions from vehicles, rejecting automakers' claims that federal law overrides state rules and that technology can't be developed to meet state benchmarks.

The ruling in the case, a lawsuit filed by automakers trying to scrap state CO2 emission rules, concerned regulations adopted by California and 11 other states to reduce such emissions from cars and light trucks by 30 percent by 2016.

For such rules to take effect, the Environmental Protection Act would have to grant a waiver under the federal Clean Air Act, allowing a state to set up more stringent vehicle anti-pollution standards than the federal government's.

Such waiver requests apparently received a big boost when the US Supreme Court ruled in April that the EPA has the authority and responsibility to regulate heat-trapping gases in automobile emissions.

Another case, in which California sued the world's six largest automakers for allegedly contributing to global warming by manufacturing cars, was dismissed last week.

US District Judge Martin Jenkins in San Francisco noted that many culprits, including other industries and even natural sources, are responsible for emitting carbon dioxide.

''The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth's atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe,'' Jenkins wrote.

The case was filed in 2006 against General Motors Corp, Chrysler LLC, Ford Motor Co, Honda Motor Co, Nissan Motor Co and Toyota Motor Corp.

California alleged that the vehicles release 289 million metric tons of CO2 each year within the US, accounting for 30 percent of emissions within California and that these emissions hurt California's coastline, water supply and treasury. The suit sought damages from the companies.

In Canada, a country that has failed to meet its CO2 emission requirements under the Kyoto Accord, Inuits and Friends of the Earth have both put together global warming cases.

Carbon emissions

An organization representing 155,000 Inuits living in Arctic regions in Canada, Alaska, Russia and Greenland traveled in March to Washington to present a petition to the 34-nation Inter-American Commission on Human Rights saying US carbon emissions have contributed so much to global warming that they should be considered a human rights violation.

The group asked the commission's assistance ''in obtaining relief'' from the impact of global warming, and made specific reference to the United States as the country most responsible for the problem.

The commission lacks the legal authority to compel the United States to take action. But Posner said: ''If a plausible claim can be made that the emission of greenhouse gases violates human rights, and that these human rights are embodied in treaty or customary international law, then American courts may award damages to the victims.''

In May, Friends of the Earth Canada launched a landmark lawsuit against the Canadian government for abandoning its international commitments under the Kyoto Protocol.

Filed in federal court in Ottawa, the lawsuit alleges that the federal government is violating Canadian law by failing to meet its binding international targets to reduce greenhouse gas emissions.

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