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Global Warming May Bring New Variety of Class Action
Published on Thursday, September 6, 2001 in the New York Times
Global Warming May Bring New Variety of Class Action
by Katharine Q. Seelye
 
WASHINGTON Taking a cue from broad-based class-action lawsuits like those filed on behalf of Holocaust survivors or against tobacco companies, a group of environmental lawyers is exploring novel legal strategies to adopt against global warming.

What makes the approach of this environmental fight extraordinary is that the plaintiffs would be not just people who live near a source of pollution but those who are thousands, even many thousands, of miles away.

Last month two dozen lawyers from around the country met in Washington to explore the avenues they might pursue to force the United States or corporations to reduce emissions of heat-trapping greenhouse gases, which scientists say are already warming the planet and posing serious risks to human health, property and even entire nations.

The lawyers, representing groups like Greenpeace, the World Wildlife Fund and the Natural Resources Defense Council, envision winning damages for people or whole countries that have suffered adverse effects of global warming. They say they were inspired by the Bush administration's refusal to go along with the Kyoto Protocol, the internationally negotiated framework for reducing greenhouse-gas emissions.

The United Nations estimates the costs of global warming at more than $300 billion a year.

"Those who are directly injured in a very concrete way by the impacts of climate change are concluding that they won't get the remedy they need through the political process, whether it's the international or domestic political process," said one organizer of the strategy session, Brian Dunkiel of Burlington, Vt., former counsel to Friends of the Earth.

Suits could be brought, for example, on behalf of Tuvalu, a tiny nine- island nation in the South Pacific. Tuvalu is home to some 10,000 people, and scientists say it could vanish within 50 years because of rising sea levels caused by the earth's warming. Already, residents are exploring the possibility of relocating to Australia or New Zealand as "environmental refugees."

Plaintiffs could also include residents of other island nations like the Maldives or Jamaica, or of the Netherlands, where the land is not much above sea level. They might include the frail elderly, whose health is at particular risk on very hot days.

Defendants could be federal agencies like the Environmental Protection Agency or the Energy Department, for subsidizing the use of fossil fuels or accused of failing to regulate emissions. Or they could be industries, like power companies.

"Whenever you have a diverse population being injured and not getting the remedy they need through the political process," Mr. Dunkiel said, "or when you need to protect a minority from the majority, that's why the courts were set up. Until the courts intervened in the civil rights movement, there was stalemate."

Spokesmen for federal agencies declined to comment, saying the idea was for now hypothetical. Privately, they suggested that a defense could include the arguments that there were no binding laws regulating global warming per se and that various plaintiffs had no legal standing.

One conservative analyst was more dismissive: Anne Hayes, an environmental lawyer for the Pacific Legal Foundation, called the approach "nuts."

"They will have a real hard time proving causation, that the United States government has caused sea levels to rise," Ms. Hayes said. "You can't even tell what the weather is going to be two days from now; do they honestly think they can attribute some global weather event to some discrete action by a government agency?"

Dan Esty, a professor of environmental law and policy at Yale Law School, was skeptical that the courts would look with favor on the environmentalists' initiative, although he added that "there is always the possibility that new legal theories can be brought to bear."

Mr. Dunkiel, on the other hand, said, "The case we're preparing is grounded in well-established traditional federal environmental laws where federal agencies would be the defendants."

Still, the environmental lawyers have not decided whether their effort will ultimately be pursued chiefly in the federal courts or in international tribunals. They have been focusing in part on a 60-year-old landmark case involving a Canadian smelting plant that was damaging crops, timber and livestock in Washington State. An international arbiter found that one country could not pollute another without being held liable.

The discussion at the lawyers' strategy session was based in part on work by Andrew Strauss, professor of international law at Widener University Law School in Delaware. Professor Strauss was recently asked by the New Economics Foundation, an environmental research group in London, to examine the possibility of poorer countries' seeking compensation from wealthier ones that emit most of the world's pollution.

Such approaches, Professor Strauss said in an interview, are still evolving as globalization links nations in important business relationships, with disputes once settled by diplomacy coming to rely on the law. "This is part of that whole broad movement toward the legalization of international relations," he said.

There has been fierce resistance to that movement, especially in the United States, where many see American participation in international courts as a threat to sovereignty. That sentiment could create big problems for any country trying to sue the United States over global warming: in all likelihood, the United States would simply not agree to the jurisdiction of a world court.

But as some see it, that would hardly end the matter.

"In some circumstances," Professor Esty said, "legal actions are evaluated or pursued not with expectations of success in court, but recognizing that a real victory would be in the court of public opinion."

Copyright 2001 The New York Times Company

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