Global warming: Here come the lawyers

There are signs that others see the writing on the wall. Bryan Cave partner J. Kevin Healy says he advises corporate clients that they need to take "reasonable" steps to pare back emissions to reduce their legal exposure. And despite the strong opposition to mandatory limits from the White House and key lawmakers, many companies, some with an eye to potential litigation, are privately ready to sign on to such curbs. Louisiana utility Entergy Corp even took the unusual step of filing a brief supporting the plaintiffs in the Supreme Court case.

As with tobacco, plaintiffs are trying out a variety of legal theories, some quite speculative. Judges and juries, however, particularly in hard-hit areas like the Gulf Coast, may be inclined to sympathize with even legally marginal claims. The Hurricane Katrina suit filed by Maples in Mississippi alleges that the emission of carbon dioxide is a "nuisance" under common law. That's a theory more typically relied on by those seeking to shut down noxious-smelling hog farms or rowdy nightclubs, though it has recently been used to win a big suit against paint manufacturers for lead contamination.

The claim that global warming is a nuisance is "a tough case to bring," says Arnold & Porter attorney Michael B. Gerrard, who is monitoring the Maples suit for a corporate client. That's because it will be tremendously difficult to prove that greenhouse gases caused Katrina, and if a jury finds that they did, apportion responsibility among polluters. Maples will have a major win if, in a decision expected within weeks, the judge even allows the trial to take place.

In another case, Connecticut and other states have taken on five electric utilities, seeking to limit their carbon emissions. In San Francisco, a group led by Friends of the Earth has sued to force the Overseas Private Investment Corp. and the Export-Import Bank of the U.S. to consider the greenhouse gases emitted by the projects they help finance. Battle is also being waged in California over auto emissions. The state proposed ambitious regulations and was promptly sued by automakers. In late September, Attorney General Bill Lockyer countersued. He alleges harm from climate change, such as reduced water supplies, caused by greenhouse gases spewing from cars.

While these cases are testing uncharted waters, the Supreme Court is tackling a more basic question. On Nov. 29 it will hear arguments in a case Massachusetts and others brought against the EPA, alleging it has failed to acknowledge its authority under the Clean Air Act to regulate greenhouse gases. If the court finds that the EPA failed to follow the statute, and the agency then proceeds to actually issue regulations, that would be a huge step forward for environmentalists. Ironically, it would probably take some of the steam out of other global warming litigation.

Even more litigation could be in the offing. Stanford University and others plan symposiums on legal responses to global climate change. And Stephen D. Susman, one of the nation's top trial lawyers, is making the issue a personal crusade. His firm is representing the Texas cities pro bono in their effort to assure cleaner power plants, and he's looking for other opportunities to help the cause. In the 1990s, Susman defended Philip Morris Cos. in the tobacco lawsuits filed by state attorneys general and thought his opponents' legal theories were so "bizarre" that they didn't have a chance. "It turns out that I was the fool, and I'm not going to let that take place again," Susman says.

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