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11.30.2010 - 09:22PM

Category: Environment

With Political Gridlock, Climate Action Seeks Legal Recourse

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By CSRwire Contributing Writer Francesca Rheannon

With the current climate talks in Cancun widely thought unlikely to lead to much progress on climate action and the US Congress captive to the fossil fuel lobby, the field for climate action is shifting to other arenas.

Last January, the Securities and Exchange Commission ruled publicly-traded companies have to warn investors of serious risks from climate change to their operations. It opened up a new flank in an emerging front against global warming: ratcheting up the financial risk for companies that fail to take climate change into account.

Vulnerability to shareholder lawsuits is just one weapon in a growing arsenal. Court action is being pursued by state governments and communities in the US and internationally by activists. Banks are beginning to put coal companies on their do-not-lend list. Insurance companies are increasingly wary of covering homes and businesses in some coastline regions. And the eminent economist Lord Nicholas Stern warned last week US goods could find themselves shut out of markets within 10 years if they were perceived as being produced with "dirty" power.

Many in the sustainability community assume the carrot of profits in the growing green economy will do more than the stick to avert catastrophe. But with green investment slowed by lack of government support for wind and solar, the struggle to save humanity may have to be fought out in the courts, at least in the short term.

A groundbreaking lawsuit was filed against BP in Quito, Ecuador on November 26, holding it responsible for the Deepwater Horizon disaster in the Gulf of Mexico and demanding that the company repair the damage to the environment, leave an amount of oil in the ground equivalent to that which was released and suspend all oil exploration in the region.

The plaintiffs include Friends of the Earth International. Nnimmo Bassey, executive director of the organization, told CSRwire the suit is directed toward "holding those who would destroy the planet accountable for their actions." Hoping to follow the example of human rights cases that have been brought in the international sphere, the plaintiffs chose Ecuador to bring the action because that country's constitution recognizes "the rights of Nature."

Another word for Nature is "ecological commons": it's the subject of a growing movement to codify the right of humans to preserve the ecosystems on which they depend for survival.

Author and policy analyst David Bollier is one of those thinking about developing a legal international framework for the ecological commons. Companies enjoy "unacknowledged subsidies from the commons," he told CSRwire, as well the ability to externalize costs. "Our challenge is to develop new legal doctrines and stakeholder trusts to force the market to take a fuller accounting of environmental costs."

The development of an internationally-recognized legal governance structure to protect the planetary ecosphere, while important, will be decades in the making -- at a time when we don't have decades, as was evidenced by a terrifying report on the escalating climate catastrophe out from the scientific community this week from the Royal Society. "Four Degrees and Beyond" details the impacts of a potential rise of four degrees Centigrade in global temperatures -- something very likely to happen within the next 50 years if we stay on the current path of emissions:

    In such a 4°C world, the limits for human adaptation are likely to be exceeded in many parts of the world, while the limits for adaptation for natural systems would largely be exceeded throughout the world. Hence, the ecosystem services upon which human livelihoods depend would not be preserved. [my emphasis]

So the existing framework is likely to become the ground on which legal battles around the climate will be fought. According to a report from DB Climate Change Advisors, the lack of federal legislation to regulate GHG emissions has been a factor in a doubling of lawsuit filings between 2006 and 2007, and a tripling in 2010 over 2009 levels.

It's been touch and go for those who would use the courts to protect the planet. A Mississippi climate change lawsuit seeking damages from Murphy Oil for Gulf coast landowners in the wake of Hurricane Katrina was first denied, then allowed to proceed by a three judge panel convened by higher court, then tossed out again by the Fifth Circuit Court in May of this year.

At issue are two questions. The first is whether the plaintiffs have "standing": can they prove the actions of the defendant are the cause of their injury -- i.e., did Murphy Oil cause the climate change that caused Hurricane Katrina? As veterans of occupational health and tobacco lawsuits can attest, proving standing is devilishly difficult, but not impossible -- over the long haul.

The second issue is the "political question doctrine," stemming from the separation of powers between the executive, legislative and judicial. In other words, if it's up to Congress to legislate or the President to regulate climate change action, then are the courts a legal venue to pursue a remedy?

The decision is likely to be made by the Supreme Court. In a move that shocked the environmental community, the Obama Administration is arguing that the courts should be off limits. It is asking the Supreme Court to dismiss a lawsuit by eight states seeking to limit carbon emissions from coal-fired power plants, claiming it's not necessary because the EPA has the power, given by the Court in 2009, to regulate GHGs.

This seems to be a supremely disingenuous argument, in light of an EPA-unfriendly Congress and a gathering storm of lawsuits against the agency by fossil-fuel-friendly business groups. Referring to the Obama Administration, one environmental lawyer representing the plaintiffs bitterly exclaimed, "with friends like these, who needs enemies?"

However, as the history of tobacco and asbestos litigation shows, these lawsuits can create real financial risks for companies. The insurance company Swiss Re issued a report last year warning that climate change lawsuits could lead to bankruptcy for companies and "climate change-related liability will develop more quickly than asbestos-related claims."

As important as lawsuits may be in moving the needle forward on tackling climate meltdown, the legal route is no real substitute for government action. "Besides cutting back on the use of fossil fuels and dirty technologies, governments need to take concrete actions -- including commitments to cut emissions and provide funds for mitigation and adaptation actions," Bassey told CSRwire. "Governments must stop playing politics with climate change. It's not an option."

About Francesca Rheannon

CSRwire Talkback's Managing Editor is Francesca Rheannon. An award-winning journalist, Francesca is co-founder of Sea Change Media. She produces the Sea Change Radio's series, Back to The Future, and co-produces the Interfaith Center of Corporate Responsibility's podcast, The Arc of Change. Francesca's work has appeared at SocialFunds.com, The CRO, and E Magazine, and she is a contributing writer for CSRwire. Francesca hosts the nationally-syndicated radio show, Writers Voice with Francesca Rheannon.

This commentary is written by a valued member of the CSRwire contributing writers' community and expresses this author's views alone.

Readers: Can law put an end to the politics surrounding climate change? Tell us what you think on Talkback.

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