It's the next wave of litigation -- after
tobacco, guns, and junk food. Why Detroit, Big Oil, and utilities should
worry
Two days after hurricane Katrina smashed
into the Gulf Coast, F. Gerald Maples returned to his hometown of Pass
Christian, Miss., to utter devastation. Most of his neighbors' houses were
totally destroyed. His was in ruins. "It broke our hearts and absolutely changed
our lives," he says. It also made Maples, a veteran asbestos plaintiffs'
attorney in New Orleans, determined to fight back. "I couldn't stand by when my
entire cultural history was destroyed by an event that could become more
frequent because of global warming," he says.
So when friend and fellow
trial lawyer Timothy W. Porter showed up to help with food and water, the two
plotted a legal assault. Since Katrina's fury was powered by unusually warm Gulf
water, and since such warmth could result from global warming, companies that
have pumped the atmosphere full of greenhouse gases like carbon dioxide should
be liable for damages, they figured. "To me, Katrina was a clear result of
irresponsible behavior by the carbon-emissions corporate economy," says Maples.
He recruited suddenly homeless neighbors like Ned Comer and filed a class action
on their behalf in federal court in Gulfport, Miss. The defendants? Dozens of
oil companies, utilities, and coal producers, from Chevron and Exxon Mobil (XOM ) to American Electric
Power (AEP ) and Xcel
Energy (XEL ). "This is a
heartfelt effort," Maples says. "I don't want to leave this global warming mess
to my children."
BROAD
ASSAULT Neither, apparently, do a host of other
lawyers, in what is becoming an ambitious legal war on oil, electric power,
auto, and other companies whose emissions are linked to global warming. At least
16 cases, drawing on a variety of legal strategies, are pending in federal or
state court. It may seem like an unconnected hodgepodge of initiatives, but
whether it's a case now before the U.S. Supreme Court seeking to force the
Environmental Protection Agency to crack down on greenhouse gases or the effort
by a coalition of Texas cities to require cleaner plants than 17 now proposed by
utilities, the challenges spring from a common concern: the lack of action in
Washington. "This boomlet in global warming litigation represents frustration
with the White House's and Congress' failure to come to grips with the issue,"
says John Echeverria, executive director of Georgetown University's
Environmental Law & Policy Institute. "So the courts, for better or worse,
are taking the lead."
It's hardly the first time the judiciary has
emerged as the forum for those who have felt stymied trying to address a broad
social issue on other fronts. And it's possible that this legal assault will
prove quixotic, akin to failed suits by cities to hold gunmakers responsible for
gun violence or by African Americans to win reparations for
slavery.
SWORD OF
DAMOCLES But there's another example that's far more
worrisome for polluters: tobacco. When state attorneys general began suing
cigarette makers in the mid-1990s to recover smoking-related health-care costs,
the litigation was widely dismissed as fanciful. Yet before the decade was out,
tobacco companies had agreed to fork over more than $300 billion and make big
changes in the marketing of cigarettes.
What's more, plaintiffs can have
an impact without prevailing in court. The mere threat of obesity lawsuits, for
example, has sent soft drink and junk food purveyors scrambling to change their
products and improve their public images. In fact, the ultimate goal for
environmentalists isn't necessarily to win cases but to ratchet up the pressure
on business and politicians to impose mandatory curbs on greenhouse gas
emissions.
Business is fighting hard to toss the issue of global warming
out of the courts entirely. "These kinds of judgments should be made by elected
representatives," insists Quentin Riegel, vice-president for litigation at the
National Association of Manufacturers. While industry lawyers don't fear any
imminent liability, they are taking the litigation seriously. Three big law
firms -- Hunton & Williams, Jones Day, and Sidley Austin -- are coordinating
defense efforts on behalf of a group of utilities.
There are signs that
others see the writing on the wall. Bryan Cave partner J. Kevin Healy says he
advises corporate clients that they need to take "reasonable" steps to pare back
emissions to reduce their legal exposure. And despite the strong opposition to
mandatory limits from the White House and key lawmakers, many companies, some
with an eye to potential litigation, are privately ready to sign on to such
curbs. Louisiana utility Entergy Corp. (ETR ) even took the unusual
step of filing a brief supporting the plaintiffs in the Supreme Court
case.
As with tobacco, plaintiffs are trying out a variety of legal
theories, some quite speculative. Judges and juries, however, particularly in
hard-hit areas like the Gulf Coast, may be inclined to sympathize with even
legally marginal claims. The Hurricane Katrina suit filed by Maples in
Mississippi alleges that the emission of carbon dioxide is a "nuisance" under
common law. That's a theory more typically relied on by those seeking to shut
down noxious-smelling hog farms or rowdy nightclubs, though it has recently been
used to win a big suit against paint manufacturers for lead
contamination.
The claim that global warming is a nuisance is "a tough
case to bring," says Arnold & Porter attorney Michael B. Gerrard, who is
monitoring the Maples suit for a corporate client. That's because it will be
tremendously difficult to prove that greenhouse gases caused Katrina, and if a
jury finds that they did, apportion responsibility among polluters. Maples will
have a major win if, in a decision expected within weeks, the judge even allows
the trial to take place.
In another case, Connecticut and other states
have taken on five electric utilities, seeking to limit their carbon emissions.
In San Francisco, a group led by Friends of the Earth has sued to force the
Overseas Private Investment Corp. and the Export-Import Bank of the U.S. to
consider the greenhouse gases emitted by the projects they help finance. Battle
is also being waged in California over auto emissions. The state proposed
ambitious regulations and was promptly sued by automakers. In late September,
Attorney General Bill Lockyer countersued. He alleges harm from climate change,
such as reduced water supplies, caused by greenhouse gases spewing from
cars.
While these cases are testing uncharted waters, the Supreme Court
is tackling a more basic question. On Nov. 29 it will hear arguments in a case
Massachusetts and others brought against the EPA, alleging it has failed to
acknowledge its authority under the Clean Air Act to regulate greenhouse gases.
If the court finds that the EPA failed to follow the statute, and the agency
then proceeds to actually issue regulations, that would be a huge step forward
for environmentalists. Ironically, it would probably take some of the steam out
of other global warming litigation.
Even more litigation could be in the
offing. Stanford University and others plan symposiums on legal responses to
global climate change. And Stephen D. Susman, one of the nation's top trial
lawyers, is making the issue a personal crusade. His firm is representing the
Texas cities pro bono in their effort to assure cleaner power plants, and he's
looking for other opportunities to help the cause. In the 1990s, Susman defended
Philip Morris Cos. (MO ) in
the tobacco lawsuits filed by state attorneys general and thought his opponents'
legal theories were so "bizarre" that they didn't have a chance. "It turns out
that I was the fool, and I'm not going to let that take place again," Susman
says.
