President Bush, See You in Court
Judging the cost of climate change

by Yuill Herbert

The Dominion, Canada

As climate change increasingly affects islanders in the South Pacific, and those living in the North, many are seeking legal recourse in international venues. Frustration with the Bush Administration's failure to take meaningful action on climate change is spilling over into the courtroom. Victims and potential victims of climate change, ranging from community organizations to city councils to entire nations, are taking legal action to force the US government to address the issue.

The Inuit people from the north of Canada and Alaska have indicated that they will launch a case against the American government at the Washington-based Inter-American Commission on Human Rights. Sheila Watt-Cloutier is the chairwoman of the Inuit Circumpolar Conference, which represents all 155 thousand of her people inside the Arctic Circle. She announced the lawsuit at a meeting where 140 governments were negotiating the final details of the Kyoto Protocol in December last year. "This a David and Goliath story. Most people have lost contact with the natural world. They even think global warming has benefits, like wearing a t-shirt in November, but we know the planet is melting and with it our vibrant culture, our way of life...Europeans understand this issue but in America the public know little or nothing and politicians are in denial."

The US is the most obvious target for a climate change lawsuit according to a report written by Andrew Strauss, a professor of International Law at Widener University. He explains that although the US has 5 per cent of the world's population, it emits 25 percent of the world's emissions and is actively impeding the ability of the global community to take collective action.

The government of the island nation of Tuvalu is also planning a case against the US and/or Australia at the International Court of Justice in The Hague. Tuvalu's highest point is only four meters above sea level and scientists are predicting that the rising sea levels caused by climate change will swamp the island within the next fifty years. Despite being in one of the most extreme positions in terms of damage from climate change, Tuvalu will have difficulty gaining a chance to make its case. Neither the US nor Australia is expected to agree to the jurisdiction of the court, which is the most straightforward method for Tuvalu to gain a hearing; other options, such as International Court advisory opinions and dispute resolution clauses, do not present a clear legal path.

Although the court system is being promoted by experts such as Strauss as having a great deal of potential to force action on greenhouse gas emission reductions, the legal process is also extremely complicated, and with an issue as complex and far-reaching as climate change, promises to be slow and costly.

In his report Warming Up To a Not-So Radical Idea: Tort-based Climate Change Litigation, lawyer David Grossman suggests using the example of legal action brought against tobacco companies. In these cases, expert testimony and scientific and statistical evidence showing the probability that smoking causes cancer was sufficient for the courts; the same methodology would likely apply to climate change. With this method the courts will be less likely to fall victim to the same skepticism and haggling over facts that has toned down the wording of statements by international scientific bodies.

There are three broad legal options to encourage the US to address climate change, according to Strauss. Plaintiffs harmed by climate change can bring actions against the Bush Administration in US federal court. Plaintiffs can sue companies who have done a disproportionate amount of damage in either US federal court or foreign courts, or plaintiffs can call the US government itself to an international tribunal.

While the Inuit and Tuvalu have chosen international legal options, organizations within the US have launched cases in the federal courts. The cities of Oakland, California, and Boulder, Colorado, in partnership with the Friends of the Earth and Greenpeace, have gone to court against two US government agencies-the Export-Import Bank (Ex-Im) and the Overseas Private Investment Corporation (OPIC)-for funding fossil fuel projects. After the city council voted to join the lawsuit, Boulder Mayor Will Toor said, "All of the work that the city of Boulder does to maintain the quality of life for our residents will be negatively impacted by the detrimental effects of climate change. We believe that this lawsuit is one way to force the federal government to start paying attention to this critical issue."

At the same time, twelve US states, several cities, and over a dozen environmental groups have joined forces to challenge the US Environmental Protection Agency's decision that it does not need to regulate US greenhouse gas emissions. "The Bush Administration is asking for five more years of studies while the world is warming and regular people will pay the price," said Gary Cook, climate coordinator for Greenpeace. "We are now asking the courts to intervene and order the EPA to enforce US environmental laws and take action to address global warming."

Although a variety of legal avenues are being explored, the United States seems to be a common target. Watt-Cloutier explained why the Inuit have taken this approach, "We are hunters and we are trained to go for the heart. The heart of the problem is in Washington."