An Environmental Lawsuit That's The Tip Of The Iceberg

Jack Dini
Livermore, CA

(From Hawaii Reporter February 27, 2009)

Our government recently took a giant step in helping environmentalist groups in their global warming crusade. Two agencies, the Export-Import Bank of the United States (Ex-Im) and the Overseas Private Investment Corporation (OPIC) settled a suit filed in 2002 by the radical environmental groups Friends of the Earth and Greenpeace, and four US cities. The suit contended that the agencies had failed to evaluate the global warming impacts of a coal-fired power plant in China, a pipeline in Africa from Chad to Cameroon and natural gas projects in Russia, Mexico, Venezuela and Indonesia.

The bottom line for the plaintiffs was simply that any power plant using fossil fuels—even clean-burning natural gas—was going to contribute to global warming. The lawsuit, Friends of the Earth, inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), is a fascinating read. After being educated on how activities on foreign soils will affect climate change and cause severe socio-economic disruption and significant adverse environmental impacts on the US, we are then given examples of folks in the US who will see their property values decline and/or their land washed away by rising seas. Then four US cities chime in with their concerns.

The plaintiffs say global warming from the emissions boost sea levels by melting glaciers, which threatens coastal cities and island vacation properties.

Dr. Philip Dunstan, professor at the College of Charleston, is building a home on St. John’s Island, approximately 10 miles southwest of Charleston, SC. The home will be approximately 5.5 miles from the ocean and on land eight feet above sea level. Dr. Dunstan is building his home higher and stronger than required by current code, even though the home is over five miles from the ocean. This is costing him a significant amount of money. Additionally, his insurance rates for the new home will increase over time. Dr. Dunstan believes that the higher insurance costs are attributable to the effects of climate change.

Pam and Jesse Williford have a lot with an elevation of five to eleven feet on Emerald Island on North Carolina’s outer bank. They are concerned about rising ocean levels, increased storm surge, etc. They may have not bought the lot if, twenty-five years ago they had known the dangers of climate change. Mr. Williford states that, “I did not think that in our lifetime or our kids’ lifetime that a house in the middle of Emerald Isle would be so affected, but now we know otherwise.”

Arthur and Anne Berndt are concerned that there aren’t enough low temperatures below freezing necessary for maple syrup production on their farm in Sharon, Vermont. Note—remember this was in 2002. Wonder what they would say after the winter of 2009.

Need one point out that all three of these examples are from folks who are members of Friends of the Earth or Greenpeace, or both?

Then the lawsuit lists four cities; Boulder, CO, and the California cities of Arcata, Oakland, and Santa Monica who state they would feel the environmental impacts of those faraway projects.
•Boulder claimed warmer temperatures could affect the snowcap it relies on for its water.
•Arcata said warming could harm salmon migration and rising seas would cause flooding that would damage the city’s wastewater treatment system.
•Oakland claimed its airport next to San Francisco Bay could be damaged by sea-level rise associated with global warming.
•Santa Monica is worried their water supply could be influenced.

The case originally made headlines in August 2006 when the court determined that the plaintiffs had the legal right to bring suit against Ex-Im and OPIC for funding projects in other areas of the world because the United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an adverse effect on the environment of the United States,” said Sue Ellen Harrision, the assistant city attorney for plaintiff city Boulder, CO.

Refusing to dismiss the case on summary judgment, the court determined that standing existed because plaintiffs had introduced evidence that: “1-increased greenhouse gases are the major factor that cause global warming in the twentieth century, 2-global warming has already occurred and has had significant environmental consequences, 3-continued increases in greenhouse gas emissions would continue to increase global warming with consequent widespread environmental impacts, 4-and that these impacts have and will affect areas used and owned by plaintiffs.”

In the midst of all the hype about global warming, the court that settled this suit obviously ignored the latest glitches in the global warming debate. First, let’s look at sea level rise. Predictions from the Intergovernmental Panel on Climate Change (IPCC) in 1980 assumed that the polar ice sheets would melt and cause a catastrophic 25 foot rise in sea level. The 25 foot increase then fell to 3 feet by 1985, and then to less than 1 foot by 1995. Patrick Michaels sums it up well, “Sea level has risen because of climate change, but it has risen only a few inches. In fact, there’s no evidence that the rate of sea level has changed at all, despite a surface temperature that has warmed, cooled, and warmed again in the last 100 years.”

Then there’s the issue of what’s really happened to temperature in recent times. After nine years of non-warming, the planet actually began to cool in 2007 and 2008 for the first time in 30 years. The net warming from 1940 to 1998 had been a minuscule 0.2 degree C; the UK’s Hadley Center says earth’s temperature has now dropped back down to about the levels of 100 years ago. As Dennis Avery points out, “There has thus been no net global warming within ‘living memory.’” So far, 2009 doesn’t look like another barn-burner for the warming advocates.

Surely you (and the court) have heard that nine of the ten warmest years recorded in the US lower 48 states since 1880 have occurred since 1995, with the hottest being in 1998. Well, that also has been shown to be wrong. Lorne Gunter reports, “A little less than a decade ago, the US government changed the way it recorded temperatures. No one thought to correlate the new temperatures with the old ones though—until Canadian researcher Steve McIntyre, that is. In many cases the changes are statistically minor, but their potential impact on the rhetoric surrounding the global warming is huge. The hottest year since 1880 becomes 1934 instead of 1998, which is now just second; 1921 is third. Four of the ten hottest years were in the 1930s, only three in the past decade. The 15 hottest years since 1880 are spread over seven decades. Eight occurred before atmospheric carbon dioxide began its recent rise; seven occurred afterwards. In other words, there is no discernible trend, no obvious warming of late.” Gunter adds, “There are two sides to the climate story. You’re getting one.”

Court decisions prompted by the lawsuit have established precedents in climate-related law. The case expanded the scope of NEPA, which requires impact statements for government projects, beyond local pollution issues to global warming. It was cited in a recent US Supreme Court decision that held that the EPA had the power to regulate greenhouse gases. Environmentalists are now looking to the Obama administration to extend climate considerations to all government actions.

Ron Shems, lead council for the plaintiffs, said, “This case was one of the very first climate change lawsuits and established the framework for other climate change cases. The claims here are no longer considered novel.” The settlement includes a provision that among other things, the agencies will take under consideration so-called greenhouse gas emissions when making investment decisions. In other words, the cumbersome—to be charitable, as Tim Hunt puts it—US environmental laws must now be applied to projects around the world.

Next on the docket—EPA is expected to regulate carbon dioxide, so this is just the beginning.