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International Law 2004

21 September 2004
International Law 2004

On July 21st 2004, eight US states and New York City filed a groundbreaking public nuisance lawsuit against five of America's largest power companies, demanding that they cut carbon dioxide emissions because of climate change. The suit does not seek monetary damages, but instead asks the companies to reduce their emissions at 174 plants by 3% per year during the next 10 years. The plaintiffs contend that by employing readily available processes and technologies the defendants can generate the same amount of electricity while emitting significantly less carbon dioxide.

The lawyers bringing the case say that the evidence is overwhelming that carbon dioxide emissions contribute to climate change, and outline a list of local impacts including:

  • Increased deaths due to intensified and prolonged heat waves;
  • Increased ground-level smog with concomitant increases in respiratory problems like asthma;
  • Beach erosion, inundation of coastal land, and salinisation of water supplies from accelerated sea level rise;
  • Reduction of the mountain snow pack in California that provides a critical source of water for the state;
  • Lowered Great Lake water levels, which impairs commercial shipping, recreational harbors and marinas, and hydropower generation;
  • More droughts and floods, resulting in property damage and hazards to human safety;
  • And, widespread loss of species and biodiversity, including the disappearance of hardwood forests from the northern US.

The case was filed in the federal court of Manhattan by the states of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, and New York City; and names Cinergy Corp., Southern Company, Xcel Energy, American Electric Power (AEP), and the Tennessee Valley Authority.

In order to better understand the impact that this case is likely to have both in the US and abroad, The Climate Group interviewed a number of pre-eminent figures in the field of international environmental law.

Is this case likely to be heard in court?

Dr. Kilaparti Ramakrishna, Deputy Director, Woods Hole Research Center
The closest link you can make to this litigation is the one against cigarettes or smoking. This is because at the time there was no law or otherwise that suggested that tobacco was harmful to human beings, and likewise right now there is no law now saying that CO2 is harmful. However, though the causal connection is strong for cancer, it is not as strong for climate change. It is harder to make the case that if these companies were to reduce their emissions of carbon dioxide that this would improve the global climate in any way, as they only represent 3% of global emissions. The first question to ask is if the attorneys general have made a strong case with regard to that causal link.

In my opinion though, it is not important to ask if the case will be entertained by the court. What is important is the signal that this litigation sends to not only the defendants in the case, but also to other companies with high levels of greenhouse gas emissions. The attorneys general probably don't think that the link to tobacco cases is that strong. They are bringing this case because they believe a) that climate change is occurring, b) that federal action is insufficient to non-existent, and c) that people in their states agree with them.

Donald Goldberg, Senior Attorney, Center for International Environmental Law
There are some procedural hurdles that the case will have to clear. There is likely to be issue with whether this case is appropriate for the federal court, or if it moves into the area of international diplomacy. The defendants may say that this case would have them give away that which the US as a matter of foreign policy would attempt to sell through international negotiations - a lowering of CO2 emissions in exchange for action by developing countries.

Anthony Hobley, Senior Associate, Global Clean Energy and Climate Change Group, Baker & McKenzie
You can compare this case to the tobacco litigation, which came in three waves. The first two waves were unsuccessful, but they were not struck out. It was the first two waves of litigation that found the documents that allowed the third wave to be successful, the ones that showed that the tobacco companies knew that they were marketing a dangerous product, and suppressed knowledge. This is the first wave of the climate litigation, and is just to get passed the first hurdles, to get access to documents and cross examine some of the executives with the hopes of finding the smoking gun.

Furthermore, the view is that the science that will help build the necessary causation and damages arguments is not far off. One can now begin to look at what portion of human induced greenhouse gases relate to certain companies. Models have now been developed that are quite sophisticated on a statistical basis and are able to show regional impacts.

Peter Roderick, Barrister, Friends of the Earth International (Climate Justice)
The lawyers are using traditional legal tracks which are public nuisance cases, and relying fundamentally on the Intergovernmental Panel on Climate Change's (IPCC) third assessment report. An interesting difference from individual victims bringing this case is that when states file suit they don't have to show the same local level of impact. States by definition cover a larger area, and one of the most interesting recent developments has been the finding of human influence on the climate at sub-global levels. The US state's wide area will be beneficial legally to the case.

How is this lawsuit different from those previously filed on the issue of climate change?

Peter Roderick, Barrister, Friends of the Earth International (Climate Justice)
This is the first time that private law has been used on climate change. Two to three years ago there were no cases on climate change at all. The first suits brought on the issue were international public law cases such as those of the Small Island States in the International Court of Justice, and of the Inuit people of Canada and Alaska against the Bush administration. There have also been cases brought against the US and German export credit agencies that are still in proceedings.

Until recently lawyers felt that as regards to domestic law, that there was nothing that could be said about climate change. However, the third assessment report by the IPCC made a lot of strong statements on the science, and now there is a lot more interest by lawyers to see what the legal implications of that science are.

The significance of this being a private law case is that it is being brought against companies, and it is the behavior of companies that has to change. This case paves the way for more financially significant damages cases, and if companies think they are going to have to pay out large sums of money in damages, that is going to be a relevant factor in determining their behavior.

What impact is this case likely to have in the United States?

Greg Foote, Visiting Fellow, Center for International Environmental Law
Companies are already working with the US government to set regulations. Cinergy and AEP have pledged to reduce emissions, and they have sent signals to policymakers that they will accept control. These companies would rather be regulated at the federal level than be fed piecemeal legislation from the states, or face law suits like this one. It is far less expensive for them to reconfigure their plants all at once than to have to do it twice or three times.

Peter Hawkes, Associate, Global Clean Energy and Climate Change Group, Baker & McKenzie
This is another angle, like the Carbon Disclosure Project, for increasing companies' awareness of climate change. One can imagine that a number of other companies will be watching this case very closely, and looking to get their documents in order in the event that they could be targeted next.

Donald Goldberg, Senior Attorney, Center for International Environmental Law
The US is most litigious country in the world, and historically litigation has played a significant role in changing public policy on an issue. However, litigation is the less efficient way to go because it takes so long. Hopefully before too much time has passed Congress and the President will see their responsibility on this issue and do what must be done.

Even if this case is not successful there will be many cases that follow it, as was the case with the tobacco and asbestos cases. Attorneys will refine their approach over time and come back with another line of attack. This first case is not even seeking damages, just action on the part of companies. However, when people in the US and elsewhere begin to feel real quantifiable damages from climate change it is a foregone conclusion that they are going to look for compensation.

Are there likely to be international repercussions from this case?

Dr. Kilaparti Ramakrishna, Deputy Director, Woods Hole Research Center
The most important impact of this case internationally will be to send another signal to the rest of the world that they do not have to give up on the US as a potential future partner in combating greenhouse gas emissions.

Peter Roderick, Barrister, Friends of the Earth International (Climate Justice)
We are likely to see more of these cases around the world as time goes on. This will be particularly true in developing countries as they are likely to suffer the greatest impacts, and they have the least ability to adapt.

Peter Hawkes, Associate, Global Clean Energy and Climate Change Group, Baker & McKenzie
It is unlikely that there will be this type of litigation in Europe which is already developing regulatory frameworks on climate change. In Australia, states are favouring emissions trading, and their work is likely to lead to caps across the country, which does not seem to be the case in the United States. In these countries there is not the same wide gap as in the US where the states see the importance of regulation, but the federal government continues to focus on voluntary measures.

Anthony Hobley, Senior Associate, Global Clean Energy and Climate Change Group, Baker & McKenzie
The courts will not step-in in countries where regulation is being put in place. In the US there is a regulatory vacuum and so the courts have a larger role to play. The US were the main architects of Kyoto, and of the market mechanisms, so there is a lot of frustration that they are no longer involved in shaping the Kyoto process. This can even be seen in segments of the US business community that they are not able to be involved in a proactive way.

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