In the wake of the extreme heat wave in the West Coast, bringing triple-digit temperatures in it’s wake, is it time for lawyers to “bring it” to the giant polluters and prosecute them with civil actions? There may be legal hurdles but “where there is a will, there’s a way.”
It has been a heat wave of “Biblical proportions.” A record-breaking temperature climb has befallen the nation’s west coast. In Arizona, nineteen firefighters were killed combating a fast-paced conflagration (i.e., wildfire) near the small town of Yarnell, just 80 miles northwest of Phoenix. The fire charred up 1,000 acres of grasslands since it broke out Friday in the midst of heat wave conditions that have been cooking up the Southwest. In Death Valley, the thermostat ascended to 129.9 degrees in Death Valley National Park, tying the record for the hottest day in June anywhere in the United States. In Pasadena, paramedics treated 15 people for heat-related injuries at the Fifth Annual Pasadena Marathon. Regardless of the questionable wisdom of holding a marathon on a scorching-hot day about which we have all been forewarned, the injuries underscore a larger reality: the extreme heat.
Climatologists have been warning us all for decades about the perils of global warming and the effects it would have on our daily lives. Yet, giant polluters, in collusion with big media interests, have tried to convince the American public that it is a “make-believe” phenomenon, that the “jury is still out” on the “question” of climate change (as if any question existed). This, of course, runs contrary to the scientifically-undisputed consensus that anthropogenic (i.e., "man-made") climate-change is a reality and it is responsible for more severe weather patterns and phenomena. But because polluting companies wield such enormous influence in Washington, the federal government has been anemic in prosecuting oil companies and other companies responsible for horrendously environmentally destructive practices.
That leaves the judicial recourse.
Suing Polluters for “Public Nuisance”
A nuisances can be public or private in nature. A private nuisance happens when someone uses his or her property in a way that inflicts harm on the property interest of other persons. For example, if your neighbor frequently plays the radio too loud, uses his backyard in a way that emits chemicals or pernicious substances onto your property, or otherwise engages in some activity that detrimentally affects your use and enjoyment of your own land, your neighbor can be liable for private nuisance.
Now, let’s transpose that same concept to the public sphere. For example, a factory some relatively short distance from your property and your neighborhood emits toxic chemicals that result in the degradation of your land and your ability to enjoy your it. Your children develop a respiratory illness as a result. Your soil becomes contaminated and you are unable to garden it any longer. Other neighbors suffer similar damages. Again, the breadth and scope of the nuisance is now public. Climate change could fit the definition of public nuisance.For a defendant to be liable for public nuisance, the defendant must engage in activities that create an “unreasonable interference with a right common to the general public.” Public nuisance law establishes duties to the “public” at large by holding it’s perpetrators accountable for “unreasonable interference with public rights.”
What is a “right common to the public?” If a polluting factory releases chemicals from it’s smokestacks that are pernicious to the air of the adjacent and surrounding township, city or neighborhoods, and people develop asthma or other lung disorder, the factory’s behavior would create a public nuisance because it is infringing a public right to be free of such toxicity and illness. The people’s right to enjoy their natural environment makes up this public right. Obviously, climate change involve public rights.
There are issues of "proximate cause" to be fleshed out in litigating a climate change lawsuit. To this end, it should be noted that fossil fuel burning has produced approximately three-quarters of the increase in carbon dioxide from human activity over the last two decades. The burning of coal and petroleum is the leading cause of increased man-made carbon emissions, with deforestation ranking as the second major contributing factor. A panel of expert witnesses enlisted to testify in a (hypothetical) class action against "Big Oil" could help prove up "causation," that is, that the defendant oil companies' activity makes up a "substantial factor" for the destruction of the environment.
Then there is the second element of whether the defendant’s interference with that public right was unreasonable. One of the factors that can help us get to that conclusion is that the offending conduct is on-going, continuing and has produced a permanent effect. Indeed, fossil fuel carbon emissions have produced a long-lasting impact given increased temperatures and other cataclysmic environmental effects that will reverberate into the coming milennia.
A third element that is often considered is whether the defendants have failed to take reasonable actions to minimize the harm they created. Not only have oil companies not taken meaningful ameliorative action to remedy the problem they created; they seem to be actively engaged in the dissemination of propaganda and disinformation about climate change through various think tanks to which they contribute and which wield enormous public influence.
California Public Nuisance Law
In California, a public nuisance is defined in California Civil Code Section 3479 as follows:
“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.
Is this the next wave of litigation in the courts?
It is hard to tell how frequent and effective this area of environmental law will become. There are issues that plaintiffs will have to contend with, including standing and proving causation. But these are not insurmountable obstacles. Enlisting the help of knowledgeable experts in the field of climatology and proving that causal link between carbon emissions and specific harm done to plaintiffs can help environmental law attorneys achieve justice for their clients.
More importantly, it can help them achieve justice for the planet.
Nothing in this article or anywhere on this blog is intended to constitute legal advice or counsel and no content on this website should be construed as such.
No comments:
Post a Comment