Climate change poses new threat: a litigation spree

Common sense on climate change is pinned down by crossfire among the three branches of US government.

Bob Tippee

Common sense on climate change is pinned down by crossfire among the three branches of US government.

Congress is contriving cap-and-trade legislation that would expensively overhaul energy markets and has potential, according to a report for the American Petroleum Institute by Ensys Energy, to shutter a third of US refining capacity by 2030.

The Obama administration craves a climate change bill to flaunt at an international summit on the subject in December. So the Environmental Protection Agency threatens to exercise authority it received in a 2007 Supreme Court decision to regulate greenhouse gases under the Clean Air Act.

That decision, which will be activated when EPA makes final its obedient finding last April that greenhouse gases endanger public health, essentially classified carbon dioxide, a compound essential to life, as an air pollutant.

And the tort bar smells money.

Suppliers of fossil fuels are being sued on grounds their products aggravate global warming, which have caused geophysical phenomena from which plaintiffs suffered loss.

By that logic, oil companies and others have been blamed for damage from Hurricane Katrina in 2005, for erosion of a barrier island in Alaska, and for other calamities.

Until recently, defendants’ lawyers have prevailed with arguments based on absence of merit or plantiffs’ legal standing.

In two cases, though, the plaintiffs have won reversals on appeal (OGJ Online, Oct. 22, 2009).

The result, warns Peter Glaser, chair of the Climate Change Practice Team in the Washington, DC, office of Troutman Sanders LLP, is a “potentially massive number of lawsuits.”

If weather damage can be blamed on climate processes presumptively caused by emissions of carbon dioxide, any emitter of the substance is a potential defendant.

That, of course, would include anyone who breaths. But oil companies and electric utilities have more money.

Preventing a proliferation of lawsuits, which would make the MTBE litigation spree of the early part of this decade look like a warm-up, might require an act of Congress.

As Glaser points out, however, the political cost of legislative repair anytime soon would be support for the cap-and-trade wrecking ball now under design.

(Online Oct. 23, 2009; author’s e-mail:

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