The blame game is a well-known political and legal ploy for avoiding responsibility. When the US pulled out of the Kyoto Protocol in 2001, the President's finger pointed at China. When the Deepwater Horizon exploded in the Gulf of Mexico, BP, Haliburton and Transocean executives each needed two hands to shift the blame at each other in front of a Senate hearing.
The thinking behind that line of defense is that it can't possibly be fair to hold one party responsible for a wrong, unless everybody else involved in the wrongdoing is held responsible, too.
Attorney Matt Pawa knows the law is a lot smarter than that childish logic -- thanks in particular to a branch of jurisprudence known as tort law -- and that's why he's ready to do battle against greenhouse gas polluters with an age-old solution: Sue the bastards.
"When I first read the IPCC [Intergovernmental Panel on Climate Change] report in 1995, where the scientists notified the world of their conclusion that there was a causal connection between anthropogenic actions and the warming we're experiencing today ... the light went off in my tort lawyer's head that we could prove a case," Pawa told SolveClimate recently.
Ever since, Pawa has been working tirelessly to establish global warming as a "public nuisance" under tort law, holding corporations accountable for their greenhouse gas pollution and forcing them to face their victims in court.
Proving causation is always one of the primary hurdles in tort cases, according to Pawa, and with scientific evidence linking emissions to climate change, the law is now on the environment's side.
"Companies couldn't possibly be causing impact this widespread and not be committing tort," he said.
At the time, Pawa was handling tort and anti-trust cases at Cohen, Milstein, Hausfeld & Toll in Washington, D.C. While continuing to work on his caseload there, Pawa began to ramp up his environmental law knowledge, finally striking out on his own to see if he could build a viable tort case related to climate change.
"It took me going out on my own and spending three years doing research to understand how this could be done," he said. "I worked with attorneys generals offices, and a lot of people who put a lot of thought and effort into it, and by 2004 we felt like we had found a way to connect all the dots and that's when we filed our first case."
Regulation v. Litigation
That case—Connecticut, et al. v. American Electric Power Co., et al.—was filed on behalf of the states of Connecticut, California, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and the City of New York, as well as three land trusts (Open Space Institute, Audobon Society of New Hampshire and Open Space Conservancy). It was the first tort case against greenhouse gas polluters and it was brought against the five largest CO2 emitters in the country: American Electric Power Co., American Electric Power Service Co., Southern Company, Tennessee Valley Authority, Xcel Energy Inc., and Cinergy Corp.
"The Connecticut attorney general's office called me back in 2001; they had seen a memo I had written, outlining some initial thoughts on how this could be done, which NRDC had shared with them, and they were intrigued by it so they called me in for a meeting," Pawa explained.
The prosecution sought injunctive, rather than monetary, compensation, seeking a court order for the utilities to reduce their greenhouse gas emissions. While the defense tried to argue that such mandates were better left in the hands of Congress and the President, and that, since the legislative and executive branches of the government were working on regulating emissions, the courts had no role to play.
"The argument certainly had some appeal—I mean, what judge wants to get involved with regulating greenhouse gas emissions? It's appealing to say 'We should just let the legislative branch handle this,' but that's not actually how our government works," Pawa said. "Judges don't just stay their hands because of what legislators are doing; that argument turns law on head."
The defense's argument was based on the principal of preemption. "If Congress does act and provide a remedy—if they set up a fund for BP spill victims, for example—then that preempts a tort case against BP," Pawa explained. "But just because they're thinking about it? No, that doesn't work."
The Political Question Doctrine
The argument is also referred to as "the political question doctrine," and in the Connecticut case, as in subsequent cases, it did work against Pawa. "That doctrine has followed me and haunted me," Pawa said.
Nonetheless, Pawa and his team persevered and in September 2009, five years after filing the suit, that work paid off in the form of a 150-page ruling in appeals court that conceded every legal issue to Pawa. Here's Judge Peter W. Hall's opinion in its original legalese.
"Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches.
"Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury."
In other words, he's not buying the political question doctrine as a valid defense for pollution.
Judge Hall went on to compare the case to public nuisance cases in which one state has sued another to prevent the dumping of sewage in waterways (Missouri v. Illinois, 1901) or a state has sued a company to reduce air pollution (Georgia v. Tenn. Copper Co., 1907), noting, "courts have applied well-settled tort rules to a variety of new and complex problems."
By far the most important statements in the ruling—and the ones currently striking fear into the hearts of polluters everywhere—were the ones that undercut the blame game. The Defense argued that global warming requires a global solution and thus cannot be deemed the responsibility of any one company or group of companies.
"The district court's reliance on a refusal to legislate results in a decision resting on particularly unstable ground," he wrote. "The Supreme Court has stated, in the context of displacement of federal common law, that 'Congress's mere refusal to legislate ... falls far short of an expression of legislative intent to supplant the existing common law in that area.'"
And later in the ruling he wrote:
"Given the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications."
The defense asked for a re-hearing in March but was denied, and they are now requesting that the Supreme Court hear the case. In the meantime, Pawa has won, as he puts it "a huge victory."
People of Kivalina v. Polluters
That victory should help with the other major tort greenhouse gases case Pawa is working on at the moment, representing the people of the Alaskan village of Kivalina against the country's largest utilities and oil companies (BP, ExxonMobil, Chevron, ConocoPhillips, AES, American Electric, Duke Energy, DTE Energy, Edison International, Xcel Energy, MidAmerican Energy Holdings, Pinnacle West Capital Corporation, The Southern Corporation, Dynegy Holdings, Reliant Energy).
Unlike the Connecticut case, in the Kivalina case the plaintiffs are seeking monetary compensation. That's because the melting of Arctic sea ice, caused by global warming, is forcing the people of Kivalina out of their village.
"Because of the lack of sea ice, the storms are pounding them to death; they have to leave and they can't afford to," Pawa said. "The government has studied it, written reports, and put an enormous pricetag on relocating the village."
The people of Kivalina are not only asking for the country's biggest polluters to pay that bill, they're also alleging that the defendants knew that their operations were causing harm and conspired to keep that information secret. It's the same charge that eventually brought the tobacco industry to its knees.
"Some of these defendants have conspired over the years to distort the science of global warming via manipulation of the press, the sponsoring of front groups to disseminate misinformation, and so on," Pawa explained. "That's all part of tortious conduct—the spreading of falsehoods and half truths."
Although the Kivalina case was dismissed on the grounds of the political question doctrine in October 2009, Pawa and his team have since appealed and the case is now making its way through the federal court of appeals.
Pawa considers the case strong, particularly given the precedent of the Connecticut ruling.
"It's a very powerful case that I think will end up very favorably for the village ... as a legal case. What's happening to their village is tragic," Pawa said. "Unfortunately, that can't be undone, but in our society when a wrong is committed the law is there to hold the wrongdoer accountable."
A Long Road Ahead
It's also a powerful case in terms of building a foundation for the use of tort law to prosecute polluters and regulate greenhouse gas emissions.
"The process of writing that lengthy [Kivalina] appellate brief brought our thinking up to a whole new level and we continue to refine our approach," Pawa said.
It helps that global warming is a mainstream topic now—a big shift from when Pawa first started researching this use of tort law—and judges don't seem to be overly swayed by climate deniers. When Pawa defended the rights of the states of California and Vermont to regulate automotive emissions, he says both judges rejected the defense of climate skeptics brought in to testify.
In his ruling in the California case, Judge Anthony W. Ishii wrote that it would be "the very definition of folly if the EPA were precluded from action simply because the level of decrease in greenhouse gas output is incompatible with existing mileage standards under the Energy, Policy and Conservation Act."
As more such cases come in front of judges, the chance of eventual success increases, according to Pawa.
"The courts themselves become accustomed to the idea of something being litigated and something being a viable cause of action, and the more accustomed they are to it, the more viable it becomes," he said.
All of which is not to say that the fight is over.
"The bad guys use media very effectively," Pawa said. "Like the Climategate b.s. and all that. They find all kinds of clever ways to use the extremely short attention span of media outlets today to say, 'It's just a debate and some say this and some say that.'"
Despite some progress, Pawa considers the litigation against corporate polluters to be in its infancy.
"We've only just begun to fight. Think where tobacco litigation was in the 1950s and 1960s – there were cases tried to defense verdict after defense verdict. The lawyers doing that? Many of them went bankrupt or came close," Pawa said.
"You learn by doing, and you learn which cases to try and which theories work. Maybe someone will come by ten years from now and think of something new, but we're setting the table for what comes after."