[lbo-talk] "Our" polytricksters must protect US owners of certain commodities from frivolous lawsuits....

[Mike Ballard]

Climate change: Cry havoc, and let slip the dogs of law

Sun May 29, 6:42 PM ET

You are a small island state, watching your low coastline being slowly
gobbled up by rising seas and eroded by storms.

You are an Australian or African farmer whose crops have been turned to
dust by the third successive year of drought.

You are a low-altitude ski resort in the French Alps, staring at yet
another winter of snowless slopes.

You are a British houseowner, whose pretty riverside home became
uninsurable and lost two-thirds of its value after the authorities
designated it in a zone liable to floods.

What do you do?

Well, today, you'd probably just shrug your shoulders and blame bad
luck or the gods of weather. In the future, though, you may prefer to
phone your attorney.

Governments, oil producers, coal-fired power plants or their corporate
inheritors, even auto companies which make gas-guzzling SUVs -- all are
tempting targets for climate-change lawsuits in the future, says a
small but growing body of legal opinion.

"Litigation on climate-related damage is clearly on the horizon," says
Richard Lord, a senior London attorney in commercial law.

He draws a parallel with lawsuits on tobacco and asbestos that were
initially tossed out of court, but doggedly returned and decades later
resulted in damages in the tens of billions of dollars.

But these sums would no doubt be dwarfed by any ruling that found a
government or corporation deliberately promoted use of a damaging
greenhouse-gas pollutant, was obstructive about cleaning it up or
covered up knowledge about the threat.

"If generally accepted scientific assessments are accurate, global
warming is likely to be the most expensive environmental problem ever,"
says Andrew Strauss, a professor of international law at Widener
University Law School in Delaware and Pennsylvania.

"Determinations are going to have to be made about who is going to bear
these costs... (and) litigation will very likely play a role."

Just five years ago, the idea of suing the US government, Exxon, Ford
or some other big promoter or user of fossil fuels because of global
warming would have raised a guffaw.

Everyone agrees with the "polluter pays" principle -- it's only fair
that if someone pours sewage into a river or dumps toxic waste at sea
or in the fields, he should be liable for damages.

So, by this line of thinking, if oil, gas and coal release carbon
dioxide (CO2) into the atmosphere, and if CO2 traps solar heat and
changes the climate system, why shouldn't those who have suffered from
the damage get redress?

But, at that time, legal action seemed ludicrous.

For one thing, the available science was poor. It was unable to prove
that extreme weather events were caused by the burning of fossil fuels
rather than by some natural oscillation in the climate system, of the
kind that the world has experienced many times in its past.

And another obstacle was how to apportion blame. If a pollutant crosses
borders and is caused by a fuel willingly used by everyone, how can a
specific government or corporation be held responsible for it?

Today, the blame question remains unsettled, but the scientific hurdle
has shrunk significantly.

Evidence that climate change is already underway has strengthened.
Research has boosted the probability link between specific bouts of
extreme weather and rising greenhouse-gas emissions. And scientists are
becoming more skilled at calculating how and where climate change will
strike.

As a result, several volleys of lawsuits have now been fired in the
United States, while in Europe, one case has been filed and several
more are expected in the coming months.

These do not focus on compensation but, instead, on the first steps of
establishing responsibility, corporate or political.

Twelve US states and several cities are suing the Environmental
Protection Agency (EPA) over its refusal to classify greenhouse gases
as pollutants under the US Clean Air Act.

In July last year, eight US states and the city of New York filed a
suit against the five biggest American power companies, arguing that
their CO2 emissions are a public nuisance that should be curbed.

Green groups are also suing US export credit groups for funding
fossil-fuel projects abroad, a move mirrored by activists in Germany.

The United States is the biggest target in the activists' crosshairs.

It is the world's greatest source of greenhouse gases, a profligate
user of fossil fuels and refuses to join the UN's Kyoto Protocol on
curbing these emissions.

More usefully, from the greens' view, it also has a tradition by which
successful litigation often leads to changes in government policies.

James Connaughton, chairman of the White House's Council on
Environmental Quality, was asked in a recent visit to Paris whether he
had given President George W. Bush any assessment of the risk to the
United States from climate litigation.

"Absolutely!" said Connaughton, himself an attorney who helped sue the
asbestos industry.

He added though: "Endless litigation in America typically has not
solved fundamental problems... it's probably the least effective and
the most expensive tool (of public policy) we have, which is why you
need to get on with better economic policies, with smarter investments
in technology, and creating an environment where investments in those
technologies can occur."

Lord says the first batch of US lawsuits probably have a low chance of
success given their novelty and the persistence of blanks in scientific
knowledge.

But, he believes, their outcome could well set down vital precedents
such as whether a court is competent to rule on such cases, what kinds
of scientific evidence or interpretations are judicially acceptable.

The legal road ahead is very long and it may be many years before any
lawsuit succeeds, but the spectre of massive liability claims is now
being taken seriously, says Lord.

"If the (scientific) scenario pans out as expected in the next 20, 30
years, it will be very difficult for (CO2) emitters to say they could
not have foreseen what was going to happen.

"There has been a very significant change in the oil companies'
attitude, which in the past was basically to brazen it out, saying
there's no such things as climate change, it's a green-extreme,
politically-inspired plot," he says.

"From anecdotal evidence, it's fairly sure that the oil industry is now
taking it seriously and taking legal advice."

http://news.yahoo.com/s/afp/20050529/sc_afp/climateenvironmentlaw_050529224240&printer=1

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"If a man rates all phenomena alike 
because he knows of no essence that 
would allow him to discriminate, he 
will in a fanaticized love of truth 
make common cause with untruth."
NEGATIVE DIALECTICS--Adorno 
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