U.S. decisions could pave way for suing over climate change

It may only be a matter of time before the battle over global warmingmoves into a courtroom.

That has already happened in the United States, where companies are being sued for contributing to global climate change events that have had local impact.

A recent legal analysis by a trio of Calgary lawyers says the way is now paved for similar actions in Canada.

For industry heads who are mostly worried about how greenhouse-gas emissions could be regulated – and taxed – by government, this raises another concern. Members of the public, or the regional governments that represent them, could start suing for damages caused by climate change.

In the State of Connecticut v. American Electric Power Company, eight states, three land trusts and the City of New York have launched an action against five public utilities.

The case was summarized in a recent legal analysis by John Goetz, Alex MacWilliam and Michael Kariya, Calgary-based lawyers with the national firm, Fraser Milner Casgrain.

The authors said the plaintiffs in the case “sought to force the utilities to abate their alleged contributions to climate change by reducing their emissions of greenhouse gases.”

The plaintiffs lost in District Court, but won in the Court of Appeal.

“The Court held that the lower court erred by equating a political case with a political question. In other words, while climate change is presently a politically charged issue, it should not necessarily be held to be a non-justiciable matter,” the authors state.

Climate change is a big, complicated, highly politicized problem – but the ruling indicates it’s not one the courts have to shy away from.

In a second case, Comer v. Murphy Oil USA, coastal property owners who suffered damage during Hurricane Katrina sued power companies for damages “allegedly caused by greenhouse gases emitted from their operations in Mississippi.”

The property owners claimed the power producers contributed to global warming, and that in turn caused sea levels to rise, which increased the damages caused by the hurricane.

A far-fetched claim? Not according to the Court of Appeals for the 5th Circuit, which overturned a lower ruling that the issue was non-justiciable because it was a political matter.

The higher court ruled the issue was not exclusively within the political domain, and that “it was sufficient that the plaintiffs could demonstrate that the defendants’ emissions of greenhouse gases contribute to climate change.”

Those cases have been remanded for further proceedings. But the rulings have paved the way for climate change litigation in the U.S. – and possibly in Canada.

“The cases raise certain legal principles that are universally relevant,” the Calgary lawyers state. “While climate change litigation would be novel in Canada, it could ostensibly be based on similar principles of tort law available in the U.S., including the common law claim of nuisance.”

In another development that could be significant, the U.S. Environmental Protection Agency recently issued a ruling that concluded climate change and greenhouse gases can be blamed for endangering human health.

“The Administrator finds that six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations. … These findings are based on careful consideration of the full weight of scientific evidence,” states the EPA in its 280-page ruling.

That judgment means industry is now on notice that greenhouse gases being emitted from their smokestacks “may reasonably be anticipated both to endanger public health and to endanger public welfare.”

Most provinces track the big emitters of greenhouse gases. Starting this month in British Columbia, industries emitting more than 10,000 tonnes of greenhouse gases per year will be required to report annually.

A list like that would give litigants a place to start when deciding who to blame for damages caused by climate change.

Could a gas plant in Fort Nelson or a pulp mill in Prince George be sued one day by the City of Richmond for losses caused by rising sea levels?

It’s an interesting possibility – perhaps even a chilling one.