The Courthouse Effect

How to win a global-warming suit.

In his recent novel State of Fear, Michael Crichton centers his plot on a global-warming lawsuit that has been threatened by a leading environmental group on behalf of a small Pacific island nation allegedly menaced by rising sea levels. In Crichton’s fictional universe, the science of global warming is a big joke, and the suit turns out to be a publicity stunt.

In real life, though, environmentalists and their allies aren’t bluffing. Frustrated by the Bush administration’s seeming indifference to climate change, they’ve plotted their legal strategy carefully and have so far filed three test cases. Federal courts in Washington, D.C., and San Francisco heard arguments in two cases last month that challenge the failure of federal agencies to address global warming. One of the suits takes on the Environmental Protection Agency for not regulating carbon dioxide emissions; the other targets the U.S. Export-Import Bank and the Overseas Private Investment Corporation for funding fossil-fuel projects without assessing the environmental impact. A third case, brought by eight states last summer against five major electric utilities, argues that the companies’ carbon dioxide emissions are a public nuisance because they trigger global warming and attendant effects like heat waves and beach erosion. Finally, the Arctic Inuit have announced plans to challenge the United States over global warming before the Inter-American Commission on Human Rights, an action that could lay the groundwork for a future trip to court.

These cases will put on trial the science of global warming—more precisely, the science demonstrating that human beings, and especially major emitters of carbon dioxide, are causing climate change by triggering the greenhouse effect. That’s a good thing for the plaintiffs. The scientific consensus on global warming has grown so solid that, outside the courthouse, even the Bush administration accepts it on occasion, and no sensible court could miss it. The first generation of global-warming lawsuits will face other hurdles, and they’re by no means sure winners. But the mounting impacts of climate change make legal remedies for global warming increasingly plausible.

Proving the science of human causation poses the first hurdle in global-warming suits because of the many different sources of greenhouse-gas emissions in the world. Given the diversity of inputs, how can a plaintiff trace harm to any particular polluter? In a case brought in federal court, this question arises as judges try to determine whether a given plaintiff has standing to bring a suit in the first place. Global warming theoretically hurts everyone in the world, but simply saying you’re a resident of planet Earth doesn’t get you into court. Rather, the current legal standard is much tougher: Plaintiffs must show an “injury in fact” (one that is “actual or imminent” rather than merely “conjectural” or “hypothetical”). They must trace their injury to the defendant’s behavior, in this case greenhouse-gas emissions. And they have to show that a court has the means to redress the harm they’ve suffered.

The elements of standing have necessarily been attacked by defendants in global-warming cases. In the most advanced suit so far—the case in which environmental groups and a number of state attorneys general seek to compel the EPA to regulate carbon dioxide under the Clean Air Act—government lawyers challenged the plaintiffs’ standing by arguing that even if the EPA did what environmentalists wanted, the action wouldn’t have much impact on a global scale. During oral argument before the D.C. Circuit, Judge A. Raymond Randolph took the government’s argument seriously, even questioning whether the link between greenhouse gases and climatic changes had been “scientifically established.” A similar attack has taken shape in the case against the U.S. Export-Import Bank and OPIC, brought by Greenpeace, Friends of the Earth, and western cities including Oakland, Calif., and Boulder, Colo. In defense of the agencies, the Department of Justice (echoing Judge Randolph) argued in its brief that the causal link between human emissions and climate change “has not been established.” The department attempted to support that argument with an expert declaration from David Legates, a well-known global-warming contrarian who is a scientist at the University of Delaware. Legates argued that “it is impossible to connect emissions of greenhouse gases from any specific source or group of sources to an increased risk of any particular outcome.”

The plaintiffs, however, are well-armed here. They’ve got definitive statements by expert bodies like the National Academy of Sciences, and they’ve also got the Bush administration’s own out-of-court concessions. In a document submitted to the United Nations in 2002, the administration accepted human beings’ role in causing global warming and discussed an array of potential domestic impacts. Assuming judges look seriously at the growing scientific consensus, environmentalists should prevail easily on the basic question of whether global warming is human-caused.

But because of the other legal elements of standing, that doesn’t mean the plaintiffs automatically win. In the most sweeping global-warming suit so far—the states’ public-nuisance case against major electric utilities like American Electric Power and the Southern Company—the plaintiffs are now trying to show that global warming from a specific source poses harm to them and that a court can redress that harm. It’s a high bar, but not necessarily an insurmountable one. Given all the sources of greenhouse-gas emissions in the world, it would be difficult for one plaintiff whose beachfront property had eroded or whose crops produced a lower yield to hold even the biggest U.S. contributor responsible. But when states file suit, they can treat the impacts of global warming in the aggregate, by measuring the cumulative toll on a large area or region. In the case against the power companies, for example, California says global warming caused partly by them has reduced snowpack in the Sierra Nevadas and so will contribute to water shortages in the state.

Obviously, the power companies aren’t exclusivelyresponsible for the decrease in snowpack. But the states don’t have to prove that. They say the five biggest companies account for 10 percent of all U.S. carbon dioxide emissions, or 650 million tons per year. At that scale, proving that power plants are contributing at least in part to serious environmental damage becomes more plausible. As for redressing the harm, the states argue that even though reining in the companies’ emissions will not end global warming, it would help reduce the attendant risks.

To be sure, if the current trio of global-warming cases get past the initial scientific and legal hurdles, they’ll have other knotty issues to deal with, including courts’ general tendency to defer to the decisions made by federal agencies. But environmentalists haven’t played out their hand yet either—their best potential plaintiffs have yet to come to court. The Arctic Inuit who are challenging the U.S. before the Inter-American Commission on Human Rights are subject to the most severe global warming on earth. The Arctic Climate Impact Assessment, conducted by an international team of 300 scientists, recently pointed out serious threats to their livelihood—ongoing reductions in sea ice, for example, menace seals and polar bears and thus also the people who depend on hunting them. In court, at least, political inaction on global warming plays in the environmentalists’ favor. If climate change continues unabated, a winning lawsuit may be only a matter of time.