[Rantman] Tracking Climate Change lawsuits -

[Richard Pauli]

Well, Congress has failed, Presidents failed, now the courts have a 
chance to wrangle with global warming.    This may be the best place to 
follow the progress of case law. http://www.climatecasechart.com/


Climate change lawsuits/*

Claimants look to courts to recoup losses
By Dianne Saxe

January 21 2011 issue

*/
http://www.lawyersweekly.ca/index.php?section=article&volume=30&number=34&article=3 
<http://www.lawyersweekly.ca/index.php?section=article&volume=30&number=34&article=3>

Climate change creates winners and losers. When the losers look for 
someone to blame, and someone to pay, whom will they find?

There are hundreds of climate change lawsuits underway in the U.S. and 
around the world. A chart of the cases (seewww.climatecasechart.com 
<http://www.climatecasechart.com/>) is already 269 pages long, and 
growing. To date, most focus on challenges to government action. Some 
try to block approvals for carbon-heavy projects like coal-fired 
electric plants, or to force governments to take climate change into 
account when making permitting decisions. Others try to block 
regulations intended to reduce emissions, such as the new/Clean Air 
Act/permitting requirements that came into effect Jan. 1.

A few cases have begun to explore how the common law can be used, either 
to seek damages for climate destruction, or to enjoin further emissions. 
As with any new science, the early cases may fail, only to pave the way 
for later successes.

In terms of damages, the most famous case is/Native Village of Kivalina 
v. ExxonMobile Corp/., No. 4:08-cv-1138 SBA (N.D. Cal.), a lawsuit 
brought against 24 oil, energy and utility companies by about 400 
Inupiat from Kivalina, Alaska. The lawsuit alleges that large U.S. 
greenhouse gas emitters are contributing to global warming. Reductions 
in sea ice interfere with traditional hunting and have allowed storms to 
erode the island on which Kivalina rests; half has already disappeared. 
Relocation of the village, which no one wants to pay for, would cost 
between $95 and $400 million. The lawsuit alleges that some defendants 
have conspired to mislead the public about climate change.

In 2009, Judge Saundra Armstrong dismissed the lawsuit, holding that 
whether greenhouse gas emissions cause a public nuisance is a "political 
question" reserved for Congress and the president. She also held that 
Kivalina lacked standing because it could not prove that the 24 
defendants were solely responsible for the harm to their island.

Kivalina appealed. Just nine days earlier, in/State of Connecticut v. 
American Electric Power/, the Second Circuit Court of Appeal had 
rejected substantially the same arguments in a case brought by several 
U.S. states, municipalities and land trusts against large coal-fired 
electric utilities. (The Connecticut defendants also appealed, to the 
U.S. Supreme Court.) Both appeals are now pending. Meanwhile, relocation 
of the embattled village remains stalemated.

In a related case, one of the Kivalina defendants is fighting its 
general liability insurer. In/Steadfast Insurance Co. v. The AES 
Corporation/(Arlington Co. Cir. Court, filed July 9, 2008), the insurer 
seeks a declaration that it is not liable for any damages AES may have 
to pay to Kivalina. The insurer says its policies only apply to claims 
arising from an "accident," that the damages occurred prior to 2003 when 
the policies were issued, and that greenhouse gases are a pollutant 
subject to their pollution exclusion clause. In 2010, AES's motion for 
summary judgment was dismissed.

It is too soon to predict how the U.S. Supreme Court will 
decide/Connecticut/and the other climate change cases that are coming 
its way. It may be that common law cases against greenhouse gas emitters 
are still too difficult and complex, until the science improves. But 
there might be an easier way for climate change losers to use the 
courts: negligence claims against those who fail to adapt to the changes 
that we know are coming. And the easiest target for those claims may be 
municipalities.

Municipalities have many responsibilities that could be made more 
challenging by climate change, including erosion, storm water, fire and 
floods. The courts have been more willing to impose liability on 
municipalities than on more senior governments, and less willing to 
accept excuses about limited resources from municipalities than from 
small and medium-sized businesses. And unlike private businesses, 
municipalities cannot simply declare bankruptcy and disappear.

The first successful cases against municipalities might allege failures 
to adapt to the known risks of climate change in areas under direct 
municipal control such as:

    * Employment;
    * Physical assets;
    * Permitting; and
    * Negligent misrepresentation.

For example, municipalities own and must properly operate a wide variety 
of infrastructure, including sewage pipes, stormwater systems, roads, 
tunnels and bridges. I am told that little of it is designed for the 
more intense weather events that climate change will bring. Even today, 
my engineer friends tell me, infrastructure is being designed and built 
to standards based on historical weather, not the wilder weather that is 
ahead.

Municipalities are protected by statutory authority and statutory 
immunity from most claims in nuisance for basic services such as sewer 
and water, but they can still be held liable for negligence. And it 
doesn't take much fault for an unsympathetic judge to find negligence. 
For example:

    * In/Port Alberni (City) v. Moyer/, [1999]B.C.J. No. 423 (B.C.
      Supreme Court), the plaintiff successfully sued the city for a
      sewer backup. The city's program of sewer inspection and flushing
      was supposed to reach 10 per cent of the lines each year; by the
      year of the incident, they should have inspected all lines, but
      had not;
    * In/Carson v. Gloucester (City)/[1999] B.C.J. No. 423 (B.C. Supreme
      Court), a resident successfully sued the city for flooding,
      following a botched attempt to clean out a drainage ditch; and
    * In/McLaren v. Stratford (City),/[2004] O.J. 2919 (Ont. S.C.J.)
      (add'l reasons in [2005]O.J. 2288) a severe rainstorm caused
      widespread sewage and storm water flooding. The plaintiffs brought
      a class action, alleging negligence in designing and operating
      storm and sanitary sewers in the area. The city agreed to pay
      $7,700,000 to the affected residents, their insurers and their
      lawyers.

Climate change losers will inevitably look to the courts for help in 
recouping their losses. In the short run, it may be easier for them to 
sue those who fail to adapt to climate change, rather than those who 
caused it. And the easiest target of all may be municipalities.

/Dianne Saxe is an environmental law specialist and heads the 
environmental law boutique Saxe Law Office in 
Toronto./<http://www.climatecasechart.com/>
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