Gaining Momentum on Climate Change Law: Interview with Michael B. Gerrard
The first lawsuits in the fledgling field of climate change law are beginning to break new ground. If climate justice is to be served through the courts, it is likely to take years of work by environmental lawyers--although they will surely be encouraged by victories against the tobacco industry.
Realistically, what hope do the courts offer to climate change activists and victims trying to force action on climate change?
To learn more about this particular front in the battle, TakePart interviewed Professor Michael B. Gerrard, Director of the Center for Climate Change Law at Columbia Law School. Author of several notable works on climate change and environmental law, Gerrard is considered by many to be amongst the world’s leading environmental lawyers.
Q. How long has the momentum that has led to climate change lawsuits such as the one filed by the village of Kivalina, Alaska been building?
A. Common law nuisance litigation has been around for centuries, but the first suit applying these theories to climate change was Connecticut v. American Electric Power, which was brought in 2004. Climate change litigation based on other theories began around 1990, but didn’t pick up until the early 2000s.
Q. You have several decades of experience in the practice of environmental law. Does climate change law build on the ground already laid by environmental lawyers or is it something entirely new and untested?
A. Climate change law, as we now know it, builds on well-established common law doctrines and also on familiar statutes such as the Clean Air Act and the National Environmental Policy Act. The application of these common law doctrines and some of these statutes to a global problem like climate change is new and mostly untested.
Q. What are major hurdles the climate change litigants are going to have to surmount if they are going to be successful in the courts?
A. The application of common law theories to climate change poses several important questions. Among them: What is the proper role of courts, as opposed to legislatures and executive agencies, in setting climate change policy? At what point does government regulation displace the role of nuisance litigation? How can individual companies be held liable for the accumulation of greenhouse gases that resulted from the emissions of millions of sources over the course of many decades, such that no specific injury can be attributed to any particular polluter? What is the relevance that the emissions were legal and in many cases were the result of government policies encouraging automobile travel, electricity use, and other activities that helped the economy but led to pollution? How would responsibility be allocated among liable parties, and how would money damages be apportioned among climate victims?
Q. Do you think there are enough experienced environmental lawyers around to fight a possible influx of climate change-related lawsuits?
A. Yes, there are many experienced environmental lawyers, and law schools like mine are training new ones. I don’t think there will be a shortage of lawyers to handle whatever cases emerge.
Q. The New York Times reported that Carol Browner, President Barack Obama’s senior adviser for energy and climate change, has suggested that such lawsuits add to pressure on Congress to pass legislation on green house gases. Do you think the energy industry as a whole is becoming more favorable to broad legislation because of the menace posed by litigation?
A. No, I don’t think that the nuisance litigation is having much impact on the energy industry; the prospect of large damage awards is still extremely remote and speculative. The energy industry is much more concerned about the multiplicity of legal requirements emerging from different agencies and levels of government; all this makes the legal environment confusing and unpredictable, and thus it is difficult to engage in rational capital and operational planning.
Q. Some activists in Copenhagen last December argued that if no fair and legally-binding international treaty was agreed to soon, litigation would become the best option to force governments and corporations to take real action on climate change. Do you think litigation could achieve this at an international level?
A. No. I think the resolution of these issues is going to be at a political level. Litigation draws attention to particular issues and helps achieve enforcement of existing laws, but new legal requirements will emerge primarily from national governments and international negotiations, not from the courts.
Q. Pending any post-Kyoto agreement, how much room is there for legal action to be taken by one government against another, for instance, could Tuvalu or the Maldives theoretically sue a major GHG emitter for obstructing its right to survive as a viable nation?
A. Such suits would push the envelope of existing legal precedent, but I would not be surprised to see some attempts made.
Q. Given the sharp divisions between governments on any post-2012 international framework to combat climate change, are calls for the establishment of an international court for the environment realistic? If not, are there sufficient tools for the battle to move to national courtrooms?
A. International courts operate on the consent of the participating countries. Countries that are not willing to undertake international environmental commitments are not going to submit themselves to the jurisdiction of a court that would impose such commitments on them. Most developed countries have national court systems that are capable of resolving disputes arising under their own laws, and there are mechanisms for resolving international disputes under existing agreements, such as the Kyoto Protocol.
Comments