Tuesday, October 24, 2006

A Bizarre Thought


Perhaps 20 years ago, I began to include a little bit in my speeches and presentations that some day, we would see global warming law suits that would make all the other class action law suits look like a space flea on Neptune.

Generally, my groups, even the best of them, would look at me with that look of marvel at what bizarre thoughts a truly creative brain is capable of, and then put the notion aside.

Since then, the state Tobacco Law suits have emblazened a trail for the roping in of rogue corporations that will recklessly endanger the lives of their addicted customers and the surrounding innocent bystanders who worked or lived around them.

Now, the idea is becoming main stream.

Here is the story from Business Week.

Global Warming: Here Come The Lawyers
Business Week
October 30, 2006

It's the next wave of litigation -- after tobacco, guns, and junk food. Why Detroit, Big Oil, and utilities should worry

Two days after hurricane Katrina smashed into the Gulf Coast, F. Gerald Maples returned to his hometown of Pass Christian, Miss., to utter devastation. Most of his neighbors' houses were totally destroyed. His was in ruins. "It broke our hearts and absolutely changed our lives," he says. It also made Maples, a veteran asbestos plaintiffs' attorney in New Orleans, determined to fight back. "I couldn't stand by when my entire cultural history was destroyed by an event that could become more frequent because of global warming," he says.

So when friend and fellow trial lawyer Timothy W. Porter showed up to help with food and water, the two plotted a legal assault. Since Katrina's fury was powered by unusually warm Gulf water, and since such warmth could result from global warming, companies that have pumped the atmosphere full of greenhouse gases like carbon dioxide should be liable for damages, they figured.

"To me, Katrina was a clear result of irresponsible behavior by the carbon-emissions corporate economy," says Maples. He recruited suddenly homeless neighbors like Ned Comer and filed a class action on their behalf in federal court in Gulfport, Miss.

The defendants?

Dozens of oil companies, utilities, and coal producers, from Chevron and Exxon Mobil (XOM ) to American Electric Power (AEP ) and Xcel Energy (XEL ). "This is a heartfelt effort," Maples says. "I don't want to leave this global warming mess to my children."


Neither, apparently, do a host of other lawyers, in what is becoming an ambitious legal war on oil, electric power, auto, and other companies whose emissions are linked to global warming. At least 16 cases, drawing on a variety of legal strategies, are pending in federal or state court. It may seem like an unconnected hodgepodge of initiatives, but whether it's a case now before the U.S. Supreme Court seeking to force the Environmental Protection Agency to crack down on greenhouse gases or the effort by a coalition of Texas cities to require cleaner plants than 17 now proposed by utilities, the challenges spring from a common concern: the lack of action in Washington.

"This boomlet in global warming litigation represents frustration with the White House's and Congress' failure to come to grips with the issue," says John Echeverria, executive director of Georgetown University's Environmental Law & Policy Institute. "So the courts, for better or worse, are taking the lead."


Business is fighting hard to toss the issue of global warming out of the courts entirely. "These kinds of judgments should be made by elected representatives," insists Quentin Riegel, vice-president for litigation at the National Association of Manufacturers. While industry lawyers don't fear any imminent liability, they are taking the litigation seriously. Three big law firms -- Hunton & Williams, Jones Day, and Sidley Austin -- are coordinating defense efforts on behalf of a group of utilities.

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. (ETR ) even took the unusual step of filing a brief supporting the plaintiffs in the Supreme Court case.


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. (MO ) 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."

Whether or not the concentration of the oil companies partially contemplates the unitization of their social liability, only the minutes of their board meetings will tell, but one thing is for sure.

If you are a big company executive, and you are betting than you can make some immoral profit by building a lot of coal plants, a lot of SUVs, or giant homes that are inefficient, you are laying the groundwork for a combined action law suit that will bring you and your stockholders to their proverbial knees.

And maybe, just maybe, you will be able to share a room with Skillings.

The alternative of course, is to shape up and make profits doing the right thing.

"Going green,'' it appears, has never been a more profitable idea," states this Bloomberg editorial.

Now there's a Bizarre Thought.


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art courtesy of Jim Stanis


Anonymous Anonymous said...

At the Chris Bell rally at Scholz Garten Saturday I noticed a lot of green shirts and asked about it. I was informed that--
"Green in the new
Red White and Blue"
Oz, it is always gratifying when one has conceived of something ahead of the crowd. Too bad it has to be about something as horrific as fighting back at global warming.

9:00 AM  
Blogger oZ said...

FM, I think the idea of telling the story the way I did is to show that some ideas and events take a long time to emerge and take shape, even though they are pretty obvious when you look at them in the rear view mirror.

I imagine that the law suit venue will be the way that congress begins to act. Unfortunately, they will probably protect the companies instead of allowing the process to continue.

thanks for the comment.

9:47 AM  
Anonymous Anonymous said...

For once I'm on the lawyers side!

2:57 PM  

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