DON BRUNELL: Disorder in the American court system

As the debate rages over the causes and consequences of global warming, one impact is certain: global warming is about to create an avalanche of lawsuits against the federal government and private industry.

As the debate rages over the causes and consequences of global warming, one impact is certain: global warming is about to create an avalanche of lawsuits against the federal government and private industry.

In October, the U.S. Court of Appeals in New Orleans ruled that residents and landowners along the Gulf Coast of Mississippi could sue 33 energy companies and utilities for damages they suffered from Hurricane Katrina.

The plaintiffs claim the companies emitted greenhouse gases that contributed to global warming, raised sea levels and created conditions that strengthened the Category 5 hurricane.

In September, the Second Circuit Court of Appeals in New York gave the green light to a coalition of eight states, New York City and environmental groups who filed suit against several coal-burning utilities for contributing to global warming.

In August, a group in California sued to block construction of a 123-mile energy transmission line, contending that regulators failed to get concessions from the utility company for the greenhouse gases that would be emitted during the construction project.

James Malloy, with the international law firm K&L Gates, warns that companies across the nation are being threatened by lawsuits alleging that their emissions are contributing to global warming.

Malloy points out that, rather than states and cities suing to reduce emissions, most of the suits are filed by people seeking money for alleged damages.

“The rise of private, often class-action, lawsuits,” warns Malloy, “has the potential to greatly increase the exposure of all affected companies.”

Pete Glaser, a Washington, D.C., attorney, says the recent court decisions indicate that any greenhouse gas emitter can be sued. “The amount of emissions didn’t seem to matter…basically any emitter of greenhouse gases and any producer of fossil fuels…can also be sued.”

Congress is wading in as well. The 1,427 page energy bill passed by the House of Representatives gives enforcement powers over greenhouse gas emissions to “…citizens, states, Indian tribes and all levels of government…”

Simply put, that means everybody can sue everybody.

In addition, the bill says that, even though the effects of global warming aren’t certain, people are still harmed by actions that might worsen global warming.

Interesting concept. No need to prove actual harm, just the likelihood of harm. Does that mean that, if I’m afraid I’ll get hit by a bus someday, I can sue the bus company now?

Why should we care about all this? Because we’re paying for it.

When federal agencies are sued for not adequately policing greenhouse gas emissions, the taxpayers pay the bill through higher taxes.

When individuals and groups sue utilities and energy producers, our utility bills go up. It doesn’t matter if the lawsuits are successful. Companies pay enormous legal fees to battle lawsuits or pay hefty settlements to avoid litigation costs.

When any individual in the country can file a lawsuit against any company, process or activity that emits greenhouse gases, it creates an intensely anti-business climate that will further cripple our economy and drive companies out of business – or out of the United States. And, if a law firm happens to win a huge new class action lawsuit, it means millions, and perhaps in some cases billions, for lawyers who sued.

Ironically, all this litigation could end up harming the environment rather than helping it. Rather than face a future of endless litigation, companies that employ millions of Americans will simply move to countries with less stringent environmental regulations – and our jobs will go with them.

If we are to have any chance of putting millions of Americans back to work, we need climate change all right. We need to change the business climate in this country to encourage, rather than discourage, employers to do business here.

Don Brunell is the president of the Association of Washington Business.

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