The people vs the corporate polluters

Campaigners in the US are pioneering the use of civil lawsuits to force business to act on climate change, writes Melanie Jarman
September 2004

When seeking inspiration for action on climate change we rarely look in the direction of the nation that elected George W Bush, has a penchant for sports-utility vehicles, and uses a disproportionate amount of the atmosphere's carbon-recycling capacity. Yet lawyers in the US are exploring a new frontier for the issue: in a ground-breaking move this July both state and local governments asked the courts to force corporate polluters to reduce their emissions of carbon dioxide - the greenhouse gas that is most responsible for climate change.

The suit, filed in New York's federal district court using a common law public-nuisance petition, alleges that the corporations it names are "the five largest emitters of carbon dioxide in the US and are among the largest in the world". These five - the energy firms American Electric Power, Southern Company, Xcel Energy, Cinergy and the Tennessee Valley Authority - emit approximately 10 per cent of the US's annual carbon dioxide emissions. These emissions contribute directly to climate change, which, the suit alleges, could lead to severe environmental and health impacts, including a doubling of heat-related deaths in Los Angeles. The suit claims that the melting of the snows that feed California's water supply could lead to water shortages that would "harm residents, hurt agriculture, disrupt other businesses, cut the source of hydroelectric power and significantly increase the damage caused by wildfires". The suit points out that means for reducing carbon dioxide emissions are both affordable and available.

This lawsuit has been driven by one of the factors that also leaves the US facing so much international criticism over climate change: Bush's refusal to do anything useful. In an article in the Columbia Journal of Environmental Law, David Grossman acknowledged that the "widely perceived lack of meaningful political action in the US to address global warming" has potentially left litigation as "the best tool for addressing climate change in the foreseeable future".

However, the problem had been not just the lack of "meaningful action"; the lack of a clearly connected chain of events from fossil-fuel use to unpredictable weather patterns had also proved problematic. This began to shift in 2001 with the release of the third climate-change assessment report from the Intergovernmental Panel on Climate Change. The report found that it was "likely" (better than a two in three chance) that human activities were causing the global climate to warm up. Some environmental lawyers saw this as hugely significant in paving the way for compensation claims against those responsible for climate change.

Peter Roderick, a lawyer who has worked with Friends of the Earth International, stated: "I think there is no doubt at all now that the third assessment report has taken forward the legal significance of the science, and this next decade is going to see quite a lot of climate change cases around the world." Even the Financial Times speculated recently that corporations that delay taking action on climate change could be sued by their investors for "incurring higher costs as a result of unduly delaying emission reductions, damaging a company's reputation and failing to disclose investment-relevant information".

The issue of attribution - finding out where responsibility lies for the dramatic changes that are taking place as a result of global warming - is becoming increasingly unavoidable. As Myles Allen put it in the journal Nature, in between sandbagging his doorstep from the rising Thames floodwaters outside his Oxford home, in February 2003: "The issue is important as it touches on a question that is far closer to many of our hearts than global sustainability or planetary survival - who to sue when the house price falls?"

Far be it from anyone in the UK to underestimate the motivational power of falling house prices. And, even though it isn't exactly based in a revolutionary consciousness, the use of legal channels for compensation may stimulate the public engagement that is needed, but still lacking, on tackling emissions and climate change. Maybe it is time for the oil companies that extract and promote the fossil fuels that lead to carbon emissions to really watch out. After all, as Allen wryly observed, if climate change leads to higher insurance premiums or lower house prices then "even the most impassioned eco-warrior has nothing on a homeowner faced with negative equity".

For more on climate change legal cases, see the website of the international legal-action pressure group the Climate Justice Programme at www.climatelaw.org


 

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