Tuesday, July 17, 2012

Climate change compensation lawsuits: Situation report for the U.S.

Situation for Climate Change
Compensation Lawsuits in U.S.
(Image  Photoeverywhere.co.uk 
The first wave of climate change litigation at U.S. Federal courts seems to run against a wall, as this article on a recent case confirms. But attorneys defending the industry do not think that the first wave was the end of the story, see this interview with attorney Larry Mason of Segal McCambridge Singer & Mahoney. The attorney of the Inuit village Kivalina is of the same opinion and foresees new argumentations in this interesting BBC broadcast. Referring to the social cost of carbon to demonstrate harm and establish damages might be one of the new argumentations to be heard in court procedures, see this article.

In the Stanford Environmental Law Journal of March 2012, Tracy D. Hester explores, in his article „A New Front Blowing in: State Law and the Future of Climate Change Public Nuisance Litigation“, the possibilities offered by the law of the various states of the U.S. (like Texas, Massachusetts, California). This article on public nuisance litigation is online accessible via LexisNexis. Hester points to the fact that the law of the various states is often more lenient than the Federal law as to questions of standing, non-justiciability and political preemption. Some states have even lowered the hurdle for environmental claims. But the relative freedom goes in two ways. Texas has blocked climate change nuisance claims. And quite some constraints and limits are imposed by the Federal law. Hester therefore thinks that climate change compensation lawsuits referring to the law of the states can hardly be successful. He mentions explicitly the following obstacles:

  • the „Due process“ or „Equal Protection“ clauses of the federal Constitution, to be invoked by non-state residents,
  • the „Full Faith and Credit Clause“ of the federal Constitution opposing enforcement in case of „inappropriately broad standing or political question doctrines“ applied by the state of the judgment,
  • constitutional enforcement limits if the defendant has no sufficient contacts with the state of the judgment.,
  • the Dormant Commerce Clause (prohibition of undue burden to or discrimination of interstate commerce),
  • possible preemption by the Federal Clean Air Act.

To resume Hester's findings in practical terms: Evidently the path via the law of one of the states is easier if the defendants have all their place of business in the very state which's law is referred to. Still the possible preemption by the Federal Clean Air Act may put an end even to pure intra-state lawsuits.

Related: What other options are there? See this overview of laws pertaining to climate change in other jurisdictions.

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