The debate about whether global warming exists is pretty much over, and it's clear which side won. The science shows that atmospheric greenhouse gasses are steadily increasing--causing higher global temperatures, more severe weather and rising sea levels.
What is still up for debate is who is to blame for climate change and what should be done to stop it or remedy its effects. A few clever plaintiffs' lawyers and state attorneys general have an opinion on how to resolve those debates--pin the blame on corporate America.
California Attorney General Bill Lockyer is trying to do just that with a lawsuit he filed in September on behalf of the residents of California against six major automakers, alleging their conduct in producing "millions of automobiles that collectively emit massive quantities of carbon dioxide" is a public nuisance. He says the state has spent millions of dollars to assess and prepare for the inevitable impact of global warming.
Filed in the Northern District of California, the suit is the latest in a series of high-profile cases that seek to hold companies responsible for climate change. So far, automakers and utilities have been the primary targets of these suits. But as more public and private plaintiffs seek creative ways to cash in on the problem of rising temperatures, many more industries could fall victim to climate change suits.
"There is no business in the U.S. that could escape this kind of litigation if it were to take off," says Allison Wood, an associate in Hunton & Willaims' environmental law group. "If you use electricity, you contribute to global warming. There's no end to the liability."
The Hot Seat
Although the connection between the automakers and global warming seems tenuous at first blush, that doesn't necessarily mean Lockyer's suit and others like it will not gain an audience before the courts. In fact, these suits are picking up steam as public concern over global warming continues to grow--no doubt stoked by the media attention garnered by Al Gore's movie "An Inconvenient Truth."
At press time at least 15 lawsuits involving climate change were percolating through the state and federal courts. Millions, if not billions, of dollars are at stake in each case.
For instance, high-profile plaintiffs' lawyers F. Gerald Maples and Timothy Porter filed a federal class action in September 2005 in Mississippi on behalf of victims of Hurricane Katrina, blaming oil companies, utilities and coal producers for the unusually warm Gulf temperatures that led to the devastating storm. And in Connecticut v. AEP, New York, Connecticut and other states are suing electric utilities, seeking a court order to limit their carbon emissions.
In San Francisco, environmental group Friends of the Earth filed suit in 2002 against import-export agencies over their failure to take greenhouse gas emissions into account when they finance projects. The Northern District of California recently resolved questions of standing in the plaintiffs' favor and the case is pending.
"The potential defendants in these types of actions are virtually unlimited," says Jim Dorr, partner at Wildman Harrold in Chicago. "Oil refining, utilities, chemical manufacturing, steel refining, forestry--all of these industries use fossil fuels. The potential ramifications are staggering if courts allow these suits to proceed."
Some courts have already decided that these suits reach too far and shouldn't be allowed to go forward. The Southern District of New York, for instance, dismissed Connecticut v. AEP in July 2004, finding the suit was barred because it raised a political question for Congress or the executive branch--not the courts--to decide. Although that case is on appeal, many believe the 2nd Circuit will dismiss it as well.
"There is very little viability to these suits," says Robin Conrad, senior vice president with the U.S. Chamber of Commerce's National Litigation Center, who has served as amicus in several pending climate change suits. "[The public nuisance suits] are simply political tactics by activist attorneys general."
Be that as it may, state governments and plaintiffs' attorneys will not be deterred in their crusade.
"If the public nuisance theory fails, they're bound to come up with another theory and try again," Conrad says.
Although these suits fight an uphill battle, courtroom losses won't necessarily stop plaintiffs from suing because collecting huge damages is not their only goal. Many of these suits have an underlying political purpose.
"It's not simply a victory that these plaintiffs need," Wood says. "They're looking to spur Congress to pass some kind of regulatory scheme."
This litigation trend mirrors the strategy state governments and the plaintiffs' bar took to prompt Congress to regulate cigarettes, guns and fatty foods. In each of those instances, plaintiffs filed an onslaught of lawsuits against an industry to draw attention to the dearth of federal legislation to control hazardous or harmful activities.
"These cases are all part of a larger trend of misusing the court system to try to establish policy," Dorr says. "People are frustrated with Congress' failure to pass greenhouse gas regulations, so they're taking these complaints to the courts."
In the case of cigarettes, the strategy worked, and the federal government passed stricter laws to regulate the industry. Suits focused on firearms and obesity were less successful. But one thing that's consistent in all three examples is that the targeted industry spent millions of dollars battling the cases in court.
Before it comes to that, one climate change case may help curtail this trend. The Supreme Court recently granted cert on Massachusetts v. EPA, which will finally answer the question of whether the EPA has the authority to regulate carbon dioxide emissions under the Clean Air Act. If it decides that the EPA can or should promulgate greenhouse gas regulations, federal regulation will pre-empt these climate change suits.
But if the Supreme Court agrees with the EPA and the 10 states that have joined the agency as intervenors that the Clean Air Act does not empower the agency to regulate greenhouse gas emissions, that leaves corporate America to deal with the expense and hassle of defending more spurious lawsuits until the federal government takes action.
Unfortunately, targeted companies have little choice but to go to court and fight these lawsuits.
"You have to defend, and defend vigorously," Wood says. "If you don't, you're laying your checkbook out and inviting any plaintiff to come after you."
The good news is that companies already have several favorable precedents to rely on in fighting these cases. Several courts, such as the Southern District of New York, have expressed discomfort with entertaining these suits based on the remoteness of the connection between the defendants and the international problem of warmer temperatures, as well as the foreign policy questions they implicate.
Still, many experts predict that the ultimate result of this litigation will be some kind of federal legislation to set goals for reducing emissions or limits on greenhouse gas emissions, which may be the best case scenario for industries under fire.
"The best outcome is certainty, one way or the other," Wood says. "If there's going to be regulation, it ought to be national, not state-by-state regulation or through tort suits."