Climate Change Nuisance Claims

In late September 2009, the Second Circuit Court of Appeals ruled that U.S. federal courts can decide common law actions that allege private emitters of greenhouse gases (GHGs) are liable for creating a public nuisance. This landmark decision, State of Connecticut v. American Electric Power Company Inc., overturns an earlier 2005 judgment, which had dismissed the case on the grounds that it presented a non- justiciable political question – in other words, a question that politicians rather than the courts should decide. This decision suggests a greater willingness by a least one U.S. court to consider common law climate change claims and could therefore result in an increase of public nuisance claims against large emitters of GHGs.

The public nuisance action was brought by two groups of plaintiffs: eight U.S. states and the City of New York (the States) and three land trusts (the Trusts), against six electric power companies that own and operate fossil-fired plants in 20 U.S. states (the Defendants). At the time the action was filed, the Defendants were responsible for approximately 25% of the U.S. power sector’s carbon dioxide (CO2) emissions and 10% of all annual CO2 emissions from human activities in the U.S. To mitigate this impact, the action seeks to hold Defendants jointly and severally liable for creating, contributing to or maintaining the alleged public nuisance of climate change. The State plaintiffs seeks action from each Defendant to abate the nuisance by having them cap their CO2 emissions and then by reducing these emissions by a specified percentage each year for a minimum of 10 years.

Although plaintiffs will be challenged to prove that the emitting companies caused the alleged public nuisance, it nonetheless further opens the floodgates within the sphere of climate change and liability.

In Canada, a court recently found that the system of parliamentary accountability established by the federal Kyoto Protocol Implementation Act, which requires that the Minister of the Environment prepare and implement an annual Climate Change Plan, was not open to judicial review.

It ain't over 'til the fat lady sings.

Carbon Markets - Marchés du Carbone

The development of the Canadian carbon market is slowly starting to take shape albeit at a different paces depending on the provinces. In Alberta, the land of the Canadian Prime Minister Harper, the situation appears to be troubling as was recently reported in the Calgary Herald (Carbon trading market pays off for Alberta farmers, October 19, 2009). The system appears to be questionable since farmers are receiving lots of money simply for not tilling their land. Is a similar Canada-wide system in the cards?

Then you have the black liquor subsidy in the U.S. which can potentially dole out millions of dollars to pulp and paper mills to continue polluting at the expense of Canadian producers.

Let's not forget the series of ecological disasters, such as the under-reported oil spill in the Gulf of Mexico where two oil tankers collided. The result: 20,000 gallons (approx. 75,000 litres) of bunker fuel (No. 6) oozing in the Gulf of Mexico.

It is difficult not to be cynical when these types of developments occur. Whether we are on the right trajectory remains to be seen (hopefully in Copenhagen).

Measuring well-being/ Mésurer le bien-être

The debate over the use of alternative indicators is staring to gain substantial ground. As a post-grad student, we covered the basic principles of measurement as is practised in environmental and ecological economics. The classic work of Herman Daly, exemplified in his 1989 book For the Common Good, elevated the issue to a higher order. But it wasn't until Nicholas Sarkozy, President of France, established the International Commission on the Measurement of Economic Performance and Social Progress that this debate had infiltrated the public policy debate at a higher level.

The European Commission held a conference in 2007 to discuss Beyond GDP which aims to continue work on measuring well-being beyond the GDP notion. Adequate indicators are needed to address global challenges such as climate change, poverty, resource depletion and health. The Canadian Index of Well-being is far from producing the same results as in Europe but has nonetheless also entered the public domain, albeit at a slower pace.

The Financial Times published an opinion in September by Joseph Stiglitz entitled Towards a better measure of well-being. Stiglitz notes that "no good accountant would ignore the depreciation of a company's capital, but the standards GDP measure not only does that but also takes no account of resource depletion and environmental degradation. Our increased awareness of the scarcity value of environmental resources makes this lacuna especially troubling".

GDP --Gross Domestic Product -- is widely used by economists to measure individual countries' economic performance. However, its value as an indicator for the standard of living is considered to be limited. GDP also does not show how a country's wealth is distributed. This indicator was created in the wake of the 1930s great depression and experts agree that it alone cannot reflect the economic performance of modern society.

The United Nations has developed an alternative measurement called the Human Development Index which measures life expectancy, literacy, education and the standards of living for countries worldwide and in which GDP is a contributing factor in the calculation. WWF's Ecological Footprint measures human demands on nature thus it attempts to include the environmental distortions that the latter does not measure.

Moving towards a low-carbon economy, preserving biodiversity, promoting resource efficiency and achieving social cohesion are today as important as economic growth.

New Book - Climate Cover-Up

Starting in the early 1990s, three large American industry groups set to work on strategies to cast doubt on the science of climate change. Even though the oil industry’s own scientists had declared, as early as 1995, that human-induced climate change was undeniable, the American Petroleum Institute, the Western Fuels Association (a coal-fired electrical industry consortium) and a Philip Morris-sponsored anti-science group called TASSC all drafted and promoted campaigns of climate change disinformation.

The success of those plans is self-evident. A Yale/George Mason University poll taken late in 2008 showed that — 20 years after President George H.W. Bush promised to beat the greenhouse effect with the “White House effect” — a clear majority of Americans still say they either doubt the science of climate change or they just don’t know. Climate Cover-Up explains why they don’t know. Tracking the global warming denial movement from its inception, public relations advisor James Hoggan (working with journalist Richard Littlemore), reveals the details of those early plans and then tracks their execution, naming names and exposing tactics in what has become a full-blown attack on the integrity of the public conversation.

Leveraging four years of original research conducted through Hoggan’s website, DeSmogBlog.com, Hoggan and Littlemore documented the participation of lapsed scientists and ExxonMobil-funded think tanks. Then they analyzed and explained how mainstream media stood by — or in some cases colluded — while deniers turned a clear issue of science (and an issue for public safety) into a partisan argument that no one could win.

This book will open your eyes, it will raise your ire and, most especially, it will inspire you to take back the truth — to end the Climate Cover-up.