[LINK] "The Coming Tide of Global Climate Lawsuits"

[rfmcdonald]

Rachel Morris' Wired Science article describes a very interesting approach to fighting climate change: get the vulnerable countries to sue the better-off ones.

The Prunerov power station is the Czech Republic’s biggest polluter: Its 300-foot-high cooling towers push plumes of white smoke high above the flat, featureless fields of northern Bohemia. Prunerov reliably wins a place on lists of Europe’s dirtiest power plants, emitting 11.1 million tons of carbon dioxide each year. So when CEZ Group, the state-controlled utility, proposed an overhaul to extend the facility’s life for another quarter of a century, protests flared — including one from a place about as far from the sooty industrial region as you can get, a place of tropical temperatures and turquoise seas with not a smokestack in sight. This January, the Federated States of Micronesia, some 8,000 miles away in the Pacific Ocean, lodged a legal challenge to the Prunerov plant on the grounds that its chronic pollution threatens the island nation’s existence.

Is that, well — legal, you might ask? In international law, there’s an established principle called transboundary harm, which means that if a Canadian factory belches toxic chemicals into a river, fouling a reservoir in Vermont, sooner or later the people at the Canadian factory will be hearing from some American lawyers. For the first time, Micronesia applied this tenet to climate change — arguing that its survival is jeopardized by any large power plant that doesn’t curb its carbon footprint. “They’re using a very creative approach to the international legal process,” says Durwood Zaelke, president of the Institute for Governance and Sustainable Development.

A groundbreaking transnational legal action might sound like a tall order for a country of 107,000 people whose most high-profile endeavor to date has been hosting the 16th season of Survivor.

Yet Micronesia has incentives to get innovative. NASA satellite maps show that the nation inhabits the spot where sea levels are rising most rapidly. For the past three years, abnormally high tides have assailed the islands, souring the soil and salting the aquifer, making it impossible to grow taro, one of the country’s few staple foods. Last year, the government declared a national emergency and spent more than 7 percent of its budget of $42 million to ferry bags of rice and drinking water to its low-lying islands. Professor Charles Fletcher, a geologist from the University of Hawaii who has conducted research in Micronesia, said, “This is the first situation I’m aware of where sea-level rise has led to threats to food and water security.”

[. . .]

Environmental lawyers point to several possibilities for international claims. Countries affected by oceanic changes could seek redress using the Convention on the Law of the Sea, although it can’t be used against the United States — which hasn’t ratified the treaty. A nation could go after a polluter in the International Court of Justice on the grounds that its citizens’ human rights would be violated if their country were wiped off the map — but, again, the United States is not a signatory, and the ICJ is somewhat toothless.

A number of lawyers told me that the most promising avenue might be the common-law doctrine used in the Kivalina case. Any nation could sue a U.S. company in U.S. court for a “nuisance” caused by climate change — Tuvalu v. ExxonMobil, if you will. And a couple of island nations that were once American protectorates, like Micronesia and Palau, have legal compacts with the United States that give them more powerful tools: They could potentially sue a company or even a government agency, using domestic statutes such as the Clean Air Act.

Thoughts?