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The Coming Global Warming “Scopes” Trial

Recent Climate Lawsuits Are Just the Tip of the Iceberg

Iceberg SOURCE: Suing companies that pump greenhouse gas emissions into the atmosphere for damage to cities and states proved difficult a few years ago. But the latest court rulings could set the stage for a climactic battle over who pays for overheating the planet.

When it comes to climate change, advocates for strong action have been getting more than a little help lately from judges. Last week, a superior court judge in Georgia blocked the construction of a coal-fired power plant on grounds that the development would not adequately control its carbon dioxide emissions. Last August, a judge ordered the Bush administration to produce an assessment of how climate change is affecting the United States (something it has been loathe to do). And then there was the biggest court decision yet, which the Georgia case relied on prominently: Last year’s ruling by the U.S. Supreme Court, in Massachusetts v. EPA, that carbon dioxide counts as a pollutant under the Clean Air Act and can be regulated as such. It was the most significant legal triumph on the climate issue so far, and a considerable embarrassment to the Bush administration.

As these developments suggest, courts are beginning to notice the swell of cultural change that we see rising all around us on the climate issue. We’re moving closer and closer, as a society, to fully accepting our responsibility to deal with global warming, and the courts—which have often served as a kind of barometer of social change—are moving right along with us.

The idea is to crusade straight at polluting companies or industries, ranging from Exxon Mobil to prominent electricity providers.

In this sense, the recent smattering of decisions could just be the tip of the (melting) iceberg. All of them dealt with fairly dry and wonky matters of administrative law, with judges deciding issues on the basis of the interpretation of statutes and agency actions. Matters could get even more interesting, though, if a judge allows one of several pending tobacco-style climate lawsuits to go to trial—cases that sue individual companies for contributing to global warming, rather than suing federal agencies for failing to regulate it. The idea is to crusade straight at polluting companies or industries, ranging from Exxon Mobil to prominent electricity providers, seeking to pin climate-related endangerment or downright harm upon them.

Such cases will require the direct laying of blame—proving that a particular company’s (or industry’s) emissions significantly or substantially contributed to a particular climate-related problem. Faced with such claims, the defendants—or rather, their expensive lawyers—can be expected to relentlessly challenge claims of scientific causation. This, in turn, could trigger a massive courtroom battle over climate science, complete with dueling experts delivering conflicting testimony across a vast gulf of charts and graphs. Try imagining global warming’s equivalent of the Scopes “Monkey” Trial, and you’ll have some idea what might be coming.

The first major global warming tort case was filed in 2004 by a number of state attorneys general led by Connecticut’s Richard Blumenthal. Lodged under federal common law, the case targeted five massive coal-burning electricity producers—American Electric Power, the Southern Company, the Tennessee Valley Authority, Xcel, and Cinergy—and tried to blame them for contributing to projected global warming impacts ranging from sea level rises to heat waves. The idea was to shoehorn the admittedly novel problem of global warming into the well-established framework of public nuisance, a body of common law long preceding the nation’s environmental statutes that protects against unreasonable interferences with general public rights, such as health and safety. In essence, the case aims to personalize the once-nebulous problem of climate change, casting it as a direct affront to the citizens of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and New York City.

The attorneys general case was rejected by a New York City district judge, and is currently on appeal before the U.S. Court of Appeals for the Second Circuit. It could be decided any day now; in fact, a decision seems overdue. In the meantime, another similar lawsuit, in some ways more ambitious and also, potentially, more earth shattering, has emerged.

Blumenthal and his fellow attorneys general merely asked for a court order capping the carbon dioxide emissions of the companies they were suing for public nuisance. But now, the village of Kivalina, Alaska, is suing ExxonMobil and 24 other fossil fuel energy companies for direct monetary damages, and accusing them not only of public nuisance, but of conspiracy to obscure the fact of global warming and its human causation.

Kivalina ranks high among the most directly victimized places in the world from global warming—melting sea ice has left it less protected from storms which are eroding the town itself. It will have to be moved, a process that will cost hundreds of millions of dollars. Climate change is affecting Arctic regions more dramatically than anywhere else in the world—meaning Arctic plaintiffs have the strongest legal case, and Kivalina perhaps the strongest of all.

While these cases hail from a different genre of the law than the 2007 Supreme Court case Massachusetts vs. EPA, they stand to benefit from it in at least one critical aspect. Namely, the Supreme Court ruled definitively that it is possible to achieve “standing,” under Article III of the Constitution, to bring a global warming lawsuit. Standing demands a causal analysis: Is an “actual or imminent” injury occurring, is it “fairly traceable” to the defendants’ activities, and can a court redress that injury? At least for an entity as significant as the state of Massachusetts, with miles upon miles of coastline being swallowed by rising seas, the Supreme Court said that standing did indeed exist. That’s a ruling that can only help future plaintiffs.

Meanwhile, the climate litigators are readying themselves. “2007 may go down as the year in which the legal pieces began falling into place,” writes environmental lawyer Matthew Pawa, who has been a climate lawsuit innovator and is one of the attorneys on the Kivalina case. As mentioned earlier, courts tend to track societal change—and it’s not hard to imagine that within ten years, with massively expensive gas and an ever-worsening climate problem, people aren’t going to feel so kindly towards the big global warming culprits of the world. In this sense, dragging them into court could only be a matter of time.



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