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Global Warming Litigation Heating Up

No one knows for sure whether the Earth’s climate is changing appreciably or whether any such change is due to humans. One thing that certainly is heating up, though, is the global warming litigation environment.

Just-terminated California Gov. Gray Davis announced last weekend that the state will sue the U.S. Environmental Protection Agency over global warming. Nine other states and several eco-activist groups, including the Sierra Club and Greenpeace, are expected to join the lawsuit.

The basis of the suit is the EPA’s recent refusal to regulate greenhouse gas emissions from cars. The EPA says it lacks the legal authority for such regulation because Congress has not declared that carbon dioxide -- the greenhouse gas at the center of the global warming controversy -- is a pollutant or that it can be regulated for climate change purposes.

California’s lawsuit comes on the heels of another suit filed last June by the attorneys general for Massachusetts, Connecticut and Maine alleging that the EPA is failing to protect the public’s health by not controlling carbon dioxide. The June filing was withdrawn, however, so that the states could join California’s lawsuit. But it may be refiled if the California suit succeeds.

The nuttiness of this litigation is only to be surpassed by the specter of mass tort and personal injury claims coming down the pike based on the global warming theory.

Eco-activist groups led by the self-proclaimed “Friends of the Earth” have established something called the “Climate Justice Programme,” which intends to enforce existing laws to “help combat the causes and impacts of climate change for the benefit of present and future generations” and to “hold the perpetrators accountable and liable for the consequences of their actions.”

Two lawsuits have already been filed: one by the cities of Boulder, Colo., and Oakland, Calif., against the U.S. export credit agencies for funding fossil fuel development and another by the International Centre for Technology against the EPA for its refusal to regulate carbon dioxide emissions.

The Climate Justice Programme asserts that, “It is illegal under international law for one State to cause harm to another State. It is illegal… for polluters to cause nuisances to the public and to market defective products, and damages must be paid. International and domestic laws prohibit human rights violations. Domestic laws impose duties on directors of bodies, such as insurance companies or pension funds, to act in the best interests of shareholders who may suffer financial harm as a result of climate impacts.”

“The potential consequences for climate change impacts would make the tobacco-payouts look like peanuts,” a lawyer working for the Climate Justice Programme told the Financial Times.

Then there’s the tiny island nation of Tuvalu, whose government claims to be worried that rising sea levels, supposedly to be caused by global warming, will wash away their country. Tuvalu is threatening to round up other island nations to sue the U.S. and Australia for causing global warming.

“We don't have hills or mountains. All we have is coconut trees,” elder statesman Koloa Talake told the Daily Telegraph in Sydney, Australia. “If the industrial countries don't consider our crisis, our only alternative is to climb up in the coconut trees when the tide rises,” Talake added.

There is, however, one global warming lawsuit that does makes sense.

The Competitive Enterprise Institute, a free-market think tank, filed a lawsuit last August against the White House Office of Science and Technology Policy for refusing to comply with federal law concerning two major government reports on global warming.

The two reports -- the “National Assessment on Climate Change” (2000) and the EPA’s “Climate Action Report 2002” base their analyses of the potential impacts of global warming on computer models that CEI says are “incapable of providing reliable predictions.”

The federal Data Quality Act, enacted in October 1998, requires that scientific data disseminated by the government meet basic scientific standards for “objectivity” and “utility.”

The agencies producing the reports were informed that their models had been proven useless -- a fact the agencies subsequently confirmed for themselves. The faulty reports were nevertheless published.

Those very reports are now being used by California, the other states and the Climate Justice Programme in their global warming litigation.

Should CEI prevail in its lawsuit, however, perhaps the global warming litigation, like Gray Davis, may just find itself recalled.

Steven Milloy is the publisher of JunkScience.com, an adjunct scholar at the Cato Institute and the author of Junk Science Judo: Self-defense Against Health Scares and Scams (Cato Institute, 2001).

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