Crikey

I reckon Greg Barns made an unnecessarily pessimistic assessment of “climate litigation” prospects in Crikey last week. Here’s why.

First, although US manufacturers of “gas guzzlers” were let off the hook by a Federal Court judge this week, California’s Attorney-General is already considering an appeal. This could go all the way to the US Supreme Court – which earlier this year made a favourable judgement that carbon dioxide is a “pollutant” that should be regulated.

Second, we never said it would be easy. The legal battle against big tobacco in the USA unfolded over decades – and so will the legal battle against big polluters.

Third, a successful damages case may be the “holy grail” for climate litigators – but there are many ways to skin a cat. By my count we’ve already had eight climate-related lawsuits heard in Australia, and at least a dozen more overseas (see below for three key examples). Although most of those cases do not claim damages, they can have major consequences. Remember, Al Capone went down for one of his lesser crimes - tax evasion:

(1) The Anvil Hill Coal Mine case

In 2006, activist Peter Gray took Centennial Coal to Court and won. The NSW Land and Environment Court found that Centennial had not done a proper assessment of the climate change impacts of coal burning from their Anvil Hill mine proposal.

The mine has been subject to further litigation (and delays), and Centennial Coal will now sell the project to Xstrata — perhaps an acknowledgement that the project is now more trouble than it’s worth.

(2) “Carbon dioxide as a pollutant”: Massachusetts v US EPA

In the most significant court decision on climate change so far, the US Supreme Court ruled in April 2007 that carbon dioxide is an air pollutant under the Clean Air Act. The generally conservative US Supreme Court accepted the scientific consensus on climate change, and criticised the US EPA for failing to take action.

Following the ruling, California Governor Schwarzenegger gave the EPA six months to approve his State’s request to regulate car and truck emissions, or he’ll sue.

(3) Local Government forced to act on climate change

Another lawsuit has sent shockwaves through local Government all over the USA. Earlier this year, California sued San Bernardino County — the USA’s largest in land area and one of the fastest growing — for failing to account for greenhouse gases when updating its 25-year blueprint for growth.

Within months, a “landmark settlement” was reached when the County agreed to introduce a tough greenhouse plan incorporating targets to reduce greenhouse pollution. Other cities and counties around the USA are now expected to follow suit.

Finally, the stakes are too high for the big polluters to rest easy. The risk of an adverse finding may seem small, but the implications of a loss are massive. Many companies would be insolvent if the “social cost” of their pollution was on their balance sheet (estimated at $US85/tonne CO2 by the Stern Review).

The law has never been the best or most efficient way to solve problems. But if we don’t get our act together, it might be the only — albeit costly and wasteful — way forward.