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Cover Story

Feeling the Heat


In July 2002, the residents of Shishmaref, an Inuit hamlet on one of Alaska’s barrier islands just 20 miles south of the Arctic Circle, finally surrendered.

They were defeated by decades of implacable change in their local environment. Rising sea levels, melting ice, deteriorating permafrost and increasingly violent storms were rendering their village uninhabitable.

So they voted to pick up and go, says community leader Tony A. Weyiouanna Sr. “It was pretty clear that our island was going to wash away and that we needed to relocate,” he says.

Four years later, however, the residents of the tiny Inuit community still occupy the threatened island as they struggle to pull together the $100 million to $150 million that Weyiouanna estimates is needed for all of them to move.

Amid their difficulties, the residents of Shishmaref may not care whether their tiny village is at the front line of global climate change. And they may not appreciate the nuances of the ongoing scientific and political debate over whether global warming is occurring, or why. But if the Earth’s climate is changing, Shishmaref won’t be the only place to feel the heat.

If the more dire projections about global warming are correct, catastrophic disruption of the Earth’s ecosys­tem is just around the corner. Major coastal cities in the United States and elsewhere will be inundated by rising sea levels caused by melting ice sheets at the North and South poles, weather patterns will become more volatile, food chains will be disrupted, animal species will be forced out of their habitats and perhaps into extinction, and diseases once confined largely to the tropics will become more prevalent in other regions. For the human popu­lation, major migrations may be necessary, while social and economic structures will be thrown into disarray.

In the face of these possibilities, the issue of global warming is taking on more legal ramifications.

There has been, for instance, a spate of recent legal actions seeking more forceful regulatory steps by government. Lawsuits also have been filed in efforts to hold alleged polluters accountable for damaging the environment. On the regulatory front, government agencies and businesses are becoming involved in complex programs for controlling emissions that may contribute to climate change. More regulatory schemes are likely to be introduced in the coming years that will affect both the public and private sectors.

Individuals would not escape the ravages of drastic environmental change, says Suzanne E. Spaulding of McLean, Va., a past chair of the ABA Standing Committee on Law and National Security who now serves on a subcommittee of the association’s Task Force on Hurricane Katrina.

“There will be family law issues as families are divided geographically,” says Spaulding. “And I think there will be lots of issues with respect to benefits. There clearly will be compensation issues. For instance, when an area is condemned as being unsafe for future habitation, what are the obligations of the government? What are the rights of people living there?” Spaulding also foresees extensive litigation between businesses.

“Climate change will be with us for the duration,” says William L. Thomas, a lawyer in Washington, D.C., who serves on the council of the ABA’s Environment, Energy and Resources Section. “Neither the phenomenon nor the means to address it are susceptible to short-term solutions.”

In the view of Mary Anne Sullivan, a former general counsel for the U.S. Department of Energy, the pace of climate change will ultimately determine the legal agenda. “If we don’t get more serious about this soon, I’m afraid we’re going to have to shift to adaptation strategies rather than reduction strategies,” says Sullivan, who is now a partner at Hogan & Hartson in Washington, D.C.

Time did not appear to be a particularly crucial concern in 1896, the year that Swedish scientist Svante August Arrhenius calculated that carbon dioxide being spewed into the atmosphere by industrial smokestacks could eventually change the Earth’s climate by intensifying the greenhouse effect—the process by which carbon dioxide helps warm the planet by trapping heat in the atmosphere. Arrhenius estimated that, at then-current rates of emission, it would take thousands of years for higher carbon dioxide emissions to have a perceptible effect.

But the rapid industrialization of the 20th century sent atmospheric levels of carbon dioxide and other greenhouse gases, such as methane and nitrous oxide, soaring. By the 1980s, computer climate models were predicting a host of nasty consequences—intense heat waves; melting glaciers; rising sea levels; and more floods, droughts and ferocious storms—if emissions of carbon dioxide and other greenhouse gases weren’t brought under control within decades rather than centuries.

TIME FLIES

The trends do not appear to have changed. the planet’s five hottest years since worldwide temperatures began to be recorded in the mid-19th century all have occurred since 1998, and the hottest single year on record is 2005, according to NASA’s Goddard Institute for Space Studies. Global temperatures have climbed 1.4 degrees Fahrenheit above preindustrial levels, and sea levels have risen as much as 10 inches, mostly due to thermal expansion of the warming water, according to estimates from the institute and other scientific organizations.

Perhaps most ominous are recent satellite studies showing that both the Greenland and Antarctic ice sheets are melting much faster than expected, raising the specter of rapid sea-level rises that could flood coastal cities and floodplains by the end of this century, according to NASA and other research groups. Not all of this evidence can be definitively linked to global warming, and high-profile skeptics remain—not the least of which is the Bush administration, which has emphasized the uncertainties of the scientific evidence.

But for most of the scientific community, the issue no longer is whether the Earth’s climate is changing. Instead, the increasingly urgent questions are what can be done and how much time is there to do it, to keep the planet from reaching the tipping point, when it becomes too late to reverse the global warming trend. In June 2005, the national academies of science of 11 nations, including the United States, issued a statement citing “strong evidence” that the world was warming and that human activities were a primary cause. “The scientific understanding of climate change is now sufficiently clear to justify nations taking prompt action,” the statement asserted.

But the actions that may be necessary to hold down greenhouse emissions would be harsh and could have a serious economic impact around the world, at least in the short term. Affluent nations like the United States and much of Europe are reluctant to compromise the prosperity they have achieved, while developing countries like China and India don’t want to forgo economic growth.

LEGAL ACTION HEATS UP

Nevertheless, some tentative steps have been taken at the national, regional and international levels to address the threat of global warming.

The European Union, for instance, has set a goal of implementing measures that would maintain temperatures at 3.6 degrees Fahrenheit above preindustrial levels. Some climate models say that is the point at which global warming would trigger the risk of major environmental change.

Holding global warming below that level would re­quire a reduction in worldwide greenhouse emissions by 2050 to about half of what they were in 1990, estimates Malte Meinshausen, a climate scientist working on a visiting basis at the National Center for Atmospheric Research in Boulder, Colo.

Yet the Kyoto Protocol, the only binding international agreement that seeks to impose emissions reductions on nations that have ratified it, sets a modest goal of reducing emissions in developed countries by 2012 to about 5 percent of 1990 levels. Moreover, no enforcement mechanism is currently in place, and it was only in March that a compliance committee was established under the United Nations Framework Convention on Climate Change, the international treaty that encompasses the protocol. As a result, even some of the protocol’s strongest proponents are slipping behind their national targets for emissions reductions. The Kyoto Protocol, which has been ratified by 163 nations, appears to have other shortcomings as well.

One significant factor is that the United States, estimated to be the world’s largest emitter of greenhouse gases, has backed out of the protocol. The Bush administration is opposed to mandatory reduction, and instead emphasizes voluntary measures to reduce emissions.

Another concern is that the protocol exempts developing countries, such as India and China, from mandatory emissions reductions. Greenhouse emissions are increasing in both countries, and China alone is projected to overtake the United States within the next few decades.

The International Energy Agency estimates that, without the participation of the United States, China and India, global carbon dioxide emissions will increase by about 50 percent by 2030, even with the Kyoto Protocol in effect.

The lack of effective global action, combined with a growing sense of urgency, has spurred international environmentalists to explore legal routes as an alternative to diplomacy.

“It’s a logical front on the war against global warming,” says Andrew L. Strauss, a professor at Widener Universi­ty School of Law in Wilmington, Del. “As more and more people get concerned and look for more solutions, they are going to look at litigation as a way to stop it.”

There are two main legal routes that might be pursued, Strauss says. On one front, actions might be brought in international courts against nations for failure to regulate greenhouse gas emissions. On the domestic front, lawsuits might be filed against private concerns, such as energy companies and automobile producers.

Strauss says the United States is the likeliest target of legal actions in international courts. “It’s the single greatest emitter of greenhouse gases and the major industrial country most markedly refusing to go along with the Kyoto process,” he says.

There is precedent in international law for holding governments respon­sible for cross-boundary pollution, ac­­cording to Strauss. He cites the sem­inal Trail smelter case, which arose out of a long-running dispute between the United States and Canada be­fore World War II. At issue were sulfur dioxide emissions from a smelter in Trail, British Columbia, that were drifting south into Wash­ington state’s Columbia River Valley. The U.S. and Canadian governments first brought the matter to a joint commission established to resolve cross-boundary disputes, then signed a convention establishing a special tribunal. In a series of decisions by the two bodies culminating in 1941, damages totaling $428,179.51 were assessed against Canada for allowing the pollution. The tribunal also directed the smelter to monitor its sulfur dioxide levels and report on them to both governments.

The rulings in the Trail smelter case were not binding, Strauss says, but they did articulate a basic interpretation of customary international law: “States owe at all times a duty to protect other states from injurious acts by individuals within their jurisdiction.”

The tricky part, however, is finding a court in such cases with jurisdiction and some power to enforce its judgments, Strauss says. The United States has rejected the jurisdiction of the International Court of Justice, the judicial arm of the U.N., and is unlikely to submit itself voluntarily to any case dealing with its emissions of greenhouse gases. An alternative, Strauss says, might be an advisory opinion from the ICJ. “A clear indication from international courts puts a bit more in your diplomatic arsenal and in the war of public opinion,” he says.

Other treaties and agreements to which the United States or another country has acceded also might be used to exert leverage over it, suggests Strauss. He notes, for instance, that rulings by the World Trade Organization might provide precedent for countries to impose remedial taxes or trade bans on another country’s goods for failing to control greenhouse gas emissions. He cites a series of decisions in the so-called shrimp-turtle dispute, in which the United States sought to ban the sale of foreign shrimp that had been caught using nets that drowned sea turtles. An appellate court of the WTO ruled that the United States could impose such trade sanctions since it had made a good-faith effort to negotiate an environmental treaty with other countries to deal with the problem. See appellate body reports in United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998) and WT/DS58/AB/RW (Oct. 22, 2001).

Applying that precedent to global warming, “The Kyoto [Protocol] was a good-faith effort to negotiate a treaty dealing with greenhouse emissions, and so it seems that the parties to Kyoto could take a trade action,” says Strauss. “I don’t think this would happen. Politically, it’s huge and it would have all sorts of ramifications. But it would definitely get the attention of the U.S. in a big way.”

In some cases, private organizations are seeking to bring international agreements to bear against the Unit­ed States.

In December, the Inuit Circumpolar Conference, a coalition representing the interests of the indigenous populations of the Arctic Circle, filed a petition with the Inter-American Commission on Human Rights, a creation of the Organization of American States. The petition asks the commission to declare that inaction by the United States on greenhouse gas emissions constitutes a human rights violation against the Inuit people, such as those in Shishmaref. The petition also asks the commission to recommend that the United States adopt mandatory limits on greenhouse gas emissions.

On Feb. 16, a coalition of environmental groups filed a petition with UNESCO’s World Heritage Committee to list the Waterton-Glacier International Peace Park, which straddles the U.S.-Canada border in parts of Montana and Alberta, as an endangered World Heritage site. The petitioners asserted that the U.S., as a signatory to the World Heritage Convention, was obligated to take steps to reduce the global warming that is threatening the park’s glaciers.

DIFFERENT PATHS, SAME ENDS

While such actions generally result in rulings that carry more political weight than force of law, advocates say they can provide precedent in some cases. The petition filed by the Inuit Circumpolar Confer­ence, for instance, does not seek damages, says Donald Goldberg, a senior attorney for the Washington, D.C.-based Center for International Environmental Law. But a favorable ruling by the commission could help support tort claims by individuals or groups of people, says Goldberg, one of the attorneys who drafted the petition.

A tort claim seeking damages for activities that lead to global warming is not far-fetched, maintains Strauss.

“This kind of suit happens a lot between private parties from different countries,” Strauss says. “For instance, if you go to Canada and get involved in a traffic accident, the person you harmed could sue you in Amer­ican courts. Or the person could choose to sue you in Canadian courts. The same issues come up in global warming. You can try to sue oil companies either in domestic courts or overseas.”

Such a lawsuit would be compatible with the basic goals of tort law, wrote David Grossman in a 2003 article published in the Columbia Journal of Environ­mental Law. Those goals, wrote Gross­man, who is founder and president of Green Light Group, an environmental consulting practice based in Washington, D.C., are to reduce the cost of accidents and provide “corrective justice.” But the costs of “accidents” associated with global warming are being borne by people living in coastal areas and high latitudes, and not the producers, such as energy companies, who thus have no incentive to reduce their greenhouse gas emissions. Grossman suggests that viable tort actions could be based on product liability claims. Plaintiffs alleging harm from global warming might argue, for instance, that there are better and safer designs for automobiles that would have mitigated the harm caused by greenhouse gas emissions had the defendants used them.

Another approach would be a suit in which public officials at the state or local level assert that greenhouse gas emissions constitute a public nuisance. That was the strategy used by the plaintiffs in Con­necticut v. American Electric Power Company Inc., Nos. 04 Civ. 5669 and 5670 (S.D.N.Y.). The plaintiffs, including several states, New York City and a number of environmental groups, sued several of the nation’s largest electric power companies in U.S. District Court in Manhattan, alleging that their greenhouse gas emissions constituted a public nuisance.

On Sept. 15, Judge Loretta A. Preska granted the defendants’ motion to dismiss on grounds that regulating greenhouse gas emissions was “a nonjusticiable political question” that is not within the jurisdiction of the courts. But the plaintiffs have appealed to the New York City-based 2nd U.S. Circuit Court of Appeals (No. 05-5104).

A similar result occurred in Massachusetts v. Environmen­tal Protection Agency, 415 F.3d 50 (July 15, 2005), in which a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 against reviewing a decision by the EPA that it lacks statutory authority under federal legislation to regulate greenhouse gas emissions from motor vehicles. The full court later rejected a petition for rehearing at 433 F.3d 66 (Dec. 2). The plaintiffs have asked the U.S. Supreme Court to accept the case for review.

The petitioners in the case included a dozen states, three cities and a number of environmental groups. They had sought review of the EPA’s rejection of their petition asking it to regulate motor vehicle emissions of carbon dioxide and other greenhouse gases.

But the court held that a reviewing court should look to both scientific evidence and policy considerations when reviewing a rulemaking decision by agencies such as the EPA. On that basis, the court said, the EPA administrator properly exercised his discretion in denying the petition for rulemaking.

Judge David S. Tatel, a member of the three-judge panel, issued dissenting opinions at both stages of the case, arguing that the EPA’s decision should be reviewed by the appellate court. In a brief dissent (joined by one other judge) from the denial of rehearing en banc, Tatel stated that the “EPA all but concedes that automobile greenhouse gas emissions ‘cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.’ ” Accordingly, the agency should not “ignore record evidence of impending pub­lic harm and … refuse altogether to assess related risks.”

ESTABLISHING STANDING

Environmental interests have had more success so far in Friends of the Earth v. Watson, No. C 02-4106, a lawsuit filed in the U.S. District Court for the Northern Dis­trict of California, which encompasses San Francisco and Oakland. In that case, a coalition of environmental groups and municipalities allege that two entities of the federal government—the Overseas Private Investment Corp. and the Export-Import Bank of the United States—failed to conduct environmental impact assessments under the Na­tional Environmental Policy Act before providing funding for plants overseas that burn fossil fuels. In a ruling issued on Aug. 23, the court denied the defendants’ motion for summary judgment and held that the plaintiffs have standing to pursue their claims.

On May 3, several states and municipalities filed Cali­for­­nia v. National Highway Traffic Safety Administration, No. 06-72317, asking the San Francisco-based 9th U.S. Circuit Court of Appeals to review whether federal fuel economy standards for light trucks built between 2008 and 2011 comply with the requirements of the National Environmental Policy Act.

Although there have not been any outright court victories for plaintiffs in lawsuits related to global warming, they are “edging closer” to at least establishing standing to pursue such actions, says J. Kevin Healy, who practices environmental law in the New York City office of Bryan Cave. “The industries shouldn’t break out the champagne yet,” he says.

Businesses probably won’t have cause for celebration, agrees John C. Dernbach of Harrisburg, Pa., a co-chair of the Sustainable Develop­ment, Ecosystems and Climate Change Committee in the ABA Section of Environment, Energy and Resources.

“The prospect of liability is a serious matter for people who understand climate change and take it seriously,” Dernbach says. “Even if the risk appears to be small in terms of the likelihood of being found liable, the consequences of being held liable are substantial—potentially in the trillions of dollars.”

Still, Healy says, even if plaintiffs overcome jurisdictional barriers in the courts, they would face other obstacles to recovery as well.

To prevail, plaintiffs would need to show, by a preponderance of the evidence, that actions by defendants were a substantial factor in causing harm leading to damages, he says. That could be difficult to prove in cases seeking damages stemming from weather events for which global warming is alleged to be a contributing factor. Even if courts accept the science of global warming, plaintiffs still would have to prove that a particular event—a heat wave, flood or hurricane, for instance—was a product of global warming.

A federal lawsuit filed in the wake of Hurricane Katrina may provide a test for some of those issues.

Comer v. Nationwide Mutual Insurance Co., No. 1:05 CV 436 (S.D. Miss. filed Sept. 20), named insurance companies, mortgage lenders, chemical companies, and oil and refining companies doing business in Mississippi as defendants. Essentially, the claim against the energy and chemical companies is that their emissions of greenhouse gases contributed to global warming, which has resulted in more intense and destructive hurricanes. (On Feb. 23, the court dismissed the case against the insurance and lending companies. An amended suit, Comer v. Murphy Oil, was filed on April 18.)

With estimates of losses from Hurricane Katrina running as high as $100 billion, lawsuits like Comer will raise daunting issues for courts even beyond questions of jurisdiction and causation, says Daniel A. Farber, director of the environmental law program at the University of California at Berkeley School of Law. “Courts are really reluctant to get in a position where they are ordering these huge economic and social changes,” he says. “If you didn’t have that facet—if instead of warming the whole world you were only raising the temperature of Lake Erie—you could get a remedy.”

Echoing some of the recent court decisions, Healy says, “The real problem is that all this should be handled by Congress. This is a situation in which everybody’s harmed and everybody’s to blame. It’s kind of wacky to be singling out specific companies. It should be handled by Congress, but perhaps not in our lifetimes.”

There are some signs that the White House and Capitol Hill may be starting to give more attention to the implications of climate change, even if it is somewhat indirect. In 2005, for instance, the Senate adopted a nonbinding resolution calling for a national mandatory program to “slow, stop and reverse” emissions of greenhouse gases. And, in the face of rising gasoline prices, the administration is pushing for more voluntary energy conservation and reliance on alternative fuels.

A LOCAL ISSUE

Meanwhile, some states and municipalities have stepped into the breach. As of late May, for instance, the mayors of 238 cities have signed the U.S. Mayors Climate Protection Agreement, committing their municipalities to meeting emissions reduction goals set forth in the Kyoto Protocol.

California has set its own standards for carbon dioxide automobile emissions aimed at achieving significant reductions by 2016. The Alliance of Automobile Manu­fac­turers and the Association of International Automobile Manufacturers are suing California over the regulations, arguing that its regulations are tantamount to setting fuel economy standards, which are the responsibility of the federal government. Central Valley Chrysler-Jeep Inc. v. Witherspoon, No. CIV-F-04-6663-REC-LJO (E.D. Cal. filed Dec. 7, 2004).

Seven states in the Northeast have formed their own cap-and-trade program, the Regional Greenhouse Gas Initiative. Slated to take effect in 2009, the initiative seeks a 10 percent reduction in carbon dioxide emissions from power plants by 2019. Maryland has been authorized by its legislature to join the consortium, probably within the next year. 

The initiative sets mandatory caps in carbon dioxide emissions for the region by giving each state a set amount of emissions allowances. Each state in turn will allocate or auction these allowances to its power companies, which face regulatory action if they fail to obtain enough allowances to cover their emissions.

The Regional Greenhouse Gas Initiative will offer an emissions trading mechanism similar to that used in the Kyoto Protocol. The mechanism, which measures a unit as a metric ton of carbon dioxide or other emissions, allows parties to the protocol to trade those units with each other. Put simply, that means one party may produce higher emissions if it has obtained credits from another party with proportionately lower emissions.

The world’s largest emissions trading market is the European Union’s Emissions Trading Scheme, which commenced trading on Jan. 1, 2005, with all 25 members of the EU participating. On a global basis, more than $11 billion in emissions allowances were traded on markets during 2005. As of mid-May, the price of a typical unit, measured as a metric ton of emissions, was $20.

U.S.-based multinational companies with operations in countries that have ratified the Kyoto Protocol have a stake in the carbon emissions market, but most American companies are largely left out because the United States is not a party to the protocol. That also means they can’t participate in a Kyoto Protocol mechanism that allows companies from developed countries to obtain carbon credits by undertaking emissions-saving projects with developing countries. Some worry that the United States will eventually be forced to join Kyoto or something like it, and that U.S. companies will then find themselves at a disadvantage.

“There is a sense that while the U.S. stays out of the Kyoto Protocol, Canadian and European companies are picking up all the cheap projects—they’re picking the low-lying fruit—and when the U.S. gets into the market there won’t be many of these left,” says Henrik Hassel­knippe, a senior analyst for Point Carbon, a market research firm in Norway that tracks the growing carbon dioxide emissions market.

LEARNING THE ROPES

Lawyers in the field should be starting now to learn the regulatory ropes of those markets.“They need to help their clients understand this as a strategic issue,” says William Thomas of the ABA’s Environment, Energy and Resources Section. “They should be asking: ‘Are you dealing effectively with this so that when regulation finally hits you, you will be well-prepared to deal with it?’ ”

Lawyers need to help their clients assess their “carbon footprints” in light of possible future regulation, as well as the financial opportunities created by carbon dioxide emissions markets, Thomas says. “How can they cost-effectively reduce that footprint to meet a regulatory obligation? Will they be able to monetize these reductions as credits that can be transferred to someone else?”

At the same time, former DOE general counsel Mary Anne Sullivan suggests that U.S. companies approach emissions trading markets carefully. “A company that trades reduction credits away before mandates are in place may have to achieve additional reductions, perhaps at a higher cost than the price they received for the reduction credits they traded away,” she says.

But talk of things like emissions trading markets does not translate very well in places like Shishmaref, where, this past February, Tony Weyiouanna for the first time in his life looked out from his town’s shore at open water as winter temperatures climbed to a balmy 40 degrees. Mean­while, between 30 feet and 50 feet of beachfront was lost in some places after just one storm.

Time is growing short, and the town needs money to move to higher ground. But federal and state funding has been sporadic and slow in coming. Weyiouanna fears that after last year’s Gulf Coast hurricanes, Shishmaref will end up in the back of the line for government assistance. At least for now, legal action is not considered an option. “We need money,” Weyiouanna says, “and we don’t want to do anything that could be seen as negative.”

So the residents of this dot on the vast Arctic landscape wait and worry and hope that they’ll be able to stay together. “We want to preserve our way of life,” Weyiouanna says. “We want to go on.”


Kristin Choo is a freelance writer in New York City.


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