Climate change: Dogs of law are off the leash

From being a marginal and even mocked issue, climate-change litigation is fast emerging as a new frontier of law where some believe hundreds of billions of dollars are at stake.

Compensation for losses inflicted by man-made global warming would be jaw-dropping, a payout that would make tobacco and asbestos damages look like pocket money.

In the past three years, the number of climate-related lawsuits has ballooned, filling the void of political efforts in tackling greenhouse-gas emissions.

Eyeing the money-spinning potential, some major commercial law firms now place climate-change litigation in their internet shop window.

Seminars on climate law are often thickly attended by corporations that could be in the firing line – and by the companies that insure them.

But legal experts sound a note of caution, warning that this is a new and mist-shrouded area of justice.

Many obstacles lie ahead before a Western court awards a cent in climate damages and even more before the award is upheld on appeal.

“There’s a large number of entrepreneurial lawyers and NGOs who are hunting around for a way to gain leverage on the climate problem,” said David Victor, director of the Laboratory on International Law and Regulation at the University of California at San Diego.

“The number of suits filed has increased radically. But the number of suits claiming damages from climate change that have been successful remains zero.”

Lawsuits in the US related directly or indirectly almost tripled in 2010 over 2009, reaching 132 filings after 48 a year earlier, according to a Deutsche Bank report.

Elsewhere in the world, the total of lawsuits is far lower than in the US, but nearly doubled between 2008 and 2010, when 32 cases were filed, according to a tally compiled by AFP from specialist sites.

The majority of these cases touch on regulatory issues and access to information, which can have many repercussions for coal, gas and oil producers and big carbon-emitting industries such as steel and cement.

In the United States, many cases seek clarification on the right of the US Environmental Protection Agency (EPA) to regulate carbon dioxide (CO2) emissions, while in Europe, the main issue has been emissions quotas allotted to companies in Europe’s carbon market.

In some cases, courts have thrown out the suits, admitted part of them or declared themselves unfit to issue a ruling and booted the affair to a higher authority.

The legal fog is especially thick when it comes to so-called nuisance suits, which seek to determine blame, and thus open the way to damages. Then there is the business of distinguishing between weather and climate. For instance, hurricanes, droughts and floods have always occurred in human history. Can one, or even several, of these be pinned to human meddling in the climate system?

And there’s a further complication: Rich nations were the first to plunder the coal, oil and gas that powered the industrial revolution, but they are now being overtaken by China and other fast-growing but still poor giants. So who is to blame? And to what degree?