Legalese: A New Way to Fight Climate Change

Back in 2006 there were a couple of landmark cases in Rhode Island and California that didn’t seem all that important at the time. The cases revolved around lead paint and whether manufacturers were still responsible for the effects of their product, and the costs associated with those effects, after the statute of limitations had run out on product liability claims. Both judges ruled that they were, and invoked public nuisance law in their rulings. The parameters of product liability, a part of tort law, force plaintiffs to prove the guilt of the defendant; prove the extent and uniqueness of their suffering; prove harm was caused by a faulty product (not misuse of the product) — and do it all within a certain time frame. But public nuisance law, as applied to products, relaxes the parameters and nixes the time limits.

At the time of the lead paint cases, some corporate lawyers worried about the implications of the rulings for their clients, while activists hoped the cases could be a jumping-off point for public nuisance lawsuits against known polluters, gun manufacturers and other corporate baddies.

But despite all the worry and hype, nothing much happened immediately following those rulings. Then, in late 2008, Kivalina, an Inupiat Eskimo village, proved all those corporate worry-warts right. The small barrier island Kivalina sits on is eroding, a fact that will eventually require the mass-evacuation of the entire village. And Kivalina villagers are suing the dozen or so oil companies they believe are responsible, citing the companies’ practices, and the climate change that results, as a “public nuisance.” An Oakland court dismissed the case, but the people of Kivalina and their lawyers are appealing and it’s starting to look like they may get somewhere.

Meanwhile, a case that actually pre-dated the 2006 lead paint cases, and which trial watchers at the time believed would be almost immediately affected by those rulings, is just now getting its day in court. Back in 2005, Hurricane Katrina victims brought a class-action lawsuit against the country’s main greenhouse gas emitters, including Shell, ExxonMobil, BP and Chevron, as well as Honeywell and American Electric. The plaintiffs claimed that these companies had a duty to “avoid unreasonably endangering the environment, public health, public and private property.”

Like the Kivalina case, the Katrina case was dismissed by a lower court. Then last October a three-judge federal appeals court allowed the case to move forward. In February, the same court decided to re-examine the case with nine justices. “The plaintiffs allege that the defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming,” the lawsuit reads. The increase in global surface and air temperatures “in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.”

There’s a pretty good likelihood that one or the other of these cases will end up before the Supreme Court, a fact that has big polluters pooping their pants. The Kivalina case is particularly worrisome because in addition to public nuisance, it claims that the defendants in the case (Big Oil) knew the consequences of their practices and deliberately covered it up. If the case were to make it all the way to the Supreme Court and any embarrassing emails or, say, whistleblowers were to suddenly appear, the impact could be drastic for the whole industry, and for the environment.

Which leaves me with one big question: Who will play the whistleblower in the climate change version of the Insider? I’m thinking it’s gotta be DiCaprio.