International Herald Tribune

*Fighting climate change, one lawsuit at a time*

By James Kanter

Wednesday, August 15, 2007

*PARIS:* A spate of pending cases in the United States and Europe could set precedents for big judgments against companies that emit greenhouse gases. Over the past two decades, tobacco companies and asbestos makers have paid billions of dollars in liabilities for harming consumers with cigarettes and insulation. Now companies responsible for emitting greenhouse gases may face similarly costly legal bills for contributing to dangerous levels of global warming.

Lawyers expect courts in the United States and Europe to rule on a

spate of cases in coming months and years that could establish precedents for big payouts and force wrenching changes on businesses.
The size of damages, said William Holmes, a partner with the law firm Stoel Rives in Portland, Oregon, "could reach the same level as in the tobacco and asbestos cases, and if anything they could be even higher."
Such cases also could become a key way of reining in polluters, particularly if political initiatives to control greenhouse gases become bogged down, said Stephen Susman, a Houston-based lawyer who led the campaign to stop TXU, a utility, from building new coal plants in

Texas. In the United States, there are currently about a dozen cases involving demands for tighter regulation and claims for damages. Among them is a case brought by property owners in Mississippi against oil and coal companies they accuse of playing a role in Hurricane Katrina, which struck the region with devastating consequences in August 2005. Led by Ned Comer, a Gulf Coast resident left homeless by the storm, the plaintiffs are seeking compensation from dozens of companies, including
ExxonMobil and Duke Energy, on the grounds that these companies' emissions directly contributed to global warming, which in turn raised the temperature of seawater in the Gulf of Mexico and intensified the strength of the hurricane.

"We can prove how much carbon these companies have pumped into the air with great precision," said Gerald Maples, a lead lawyer in the case. Among his claims against oil and coal companies: conspiracy, for funding misinformation about the reality of global warming; conducting activities that led to saltwater and hazardous materials entering plaintiffs' properties; and damages for loss of business and emotional distress.

Maples would not say what amount of money he is seeking, but said he would use a formula to calculate the exact contribution of each polluter named in the case to the damage caused by the hurricane. A hearing in the case is scheduled for Aug. 30.

In another closely watched case, a former California attorney general, Bill Lockyer, last year sued General Motors, Ford, DaimlerChrysler, Toyota, Honda and Nissan for making automobiles that emit millions of tons of greenhouse gases annually.

According to Lockyer, the carmakers' products contribute to longer heat waves, more intense wildfires and reductions in snow pack in mountain areas, entitling California to massive compensation for billions of dollars in future damages.

The carmakers have made a motion to dismiss the case, but the judge has not yet issued a ruling. Greenhouse gas plaintiffs won a key victory in April when the Supreme Court obliged the nation's environmental agency to regulate CO2 emissions from new cars and trucks. Some lawyers say that judgment widened the scope for ordinary citizens to bring global warming cases. But making blame for global warming stick still could prove to be a major challenge.David Hayes, the global chair of the environment, land and resources department at the law firm Latham & Watkins in Washington, said proving what contribution was made by a particular refinery, utility or carmaker

to two centuries of emissions may be harder than proving that a maker of a particular brand of cigarettes or insulation caused harm. "It is very difficult to parse out individual defendants' contributions to climate change when carbon dioxide is pumped out around the globe," said Hayes. In Europe, plaintiffs face additional hurdles. National legal systems make it more difficult than in the United States for individuals to band together in class action lawsuits. Even so, European lawyers are planning cases similar to those already under way in California and Mississippi.

Peter Roderick, a co-director of the Climate Justice Program in London, said he expected future cases to be brought by owners of businesses like Alpine ski resorts, which are threatened by dramatic reductions in snow pack as a result of global warming.
But he said he expected the first big European case to involve families whose relatives died in a ferocious heat wave that baked countries including France during August 2003.

Yann Queinnec, a lawyer with Sherpa, an association of attorneys based in Paris, said his group was preparing such a case against European automobile manufacturers and that the group would file a case in French court, probably during the fall. Queinnec said Sherpa was still deciding whether to pursue a civil case, in order to claim damages from carmakers for the deaths from the heat wave - which led to the deaths of about 15,000 people, most of them elderly, in France - or to ask for criminal sanctions against the car companies.

Lawyers said a separate complaint, filed in May against Volkswagen by the campaign group GermanWatch, is a forerunner of some of the arguments Sherpa could make in its case.GermanWatch contends that Volkswagen has damaged the environment by expanding its range of luxury cars that pollute more heavily, and by conducting lobbying campaigns against legislation to protect theclimate. GermanWatch's case is not before a court, however, but with Germany's Ministry of Finance, under a procedure established by the Organization for Economic Cooperation and Development to monitor the activities of large corporations more closely. Volkswagen would not face a fine in the case. But Cornelia Heydenreich, the senior adviser for corporate accountability at GermanWatch, said the case still could raise pressure on European governments to extend their control over carmakers and help European litigators learn important lessons for the future.

A spokeswoman for Volkswagen, Ines Roessler, said the company was still working on its official response to GermanWatch's complaint and was seeking to have the case dismissed - partly to dissuade any lawsuits in the future. "If it proves the case that GermanWatch don't get anywhere," said Roessler, litigation "will be something that other people will not even want to try."

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