The Lawyers Weekly - January 21, 2011

Climate

change lawsuits

Claimants look to courts to recoup losses

DIANNE
SAXE

limate 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 cli-
mate change lawsuits under-
way in the U.S. and around the
world. A chart of the cases (see www.cli
matecasechart.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 pro-
jects like coal-fired electric plants, or to
force governments to take climate change
into account when making permitting deci-
sions. 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. Exxon-Mobile 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 dec-

laration 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;