Climate Change Litigation

by Joseph Wayne Smith and David Shearman, 2006, Presidian Legal Publications

ISBN : 0975725440

Book Review - A Changing Climate of Litigation, Richard Dahl

Elsewhere around the world, there also have been developments in climate change litigation. Smith and a University of Adelaide colleague, physician David Shearman, recently co-authored a book, Climate Change Litigation, that examines the issue in more of a worldwide perspective, although they focus on the United States and Australia for examples. Shearman is a longtime member of the volunteer group Doctors for the Environment, Australia, and a contributor to the health sections of the 2001 and 2007 assessments of the Intergovernmental Panel on Climate Change, while Smith applied legal analyses to examine the kinds of legal responses that hold promise.

"[Climate change plaintiffs] are raising questions that are not for the court to resolve. Certainly, I don't think the founding fathers thought that the judicial branch was where policies like this should be made."
- Russell S. Frye C02 Litigation Group

To Shearman, the key to making effective legal arguments about global warming rests in the scientific data about the health effects. As an example, he cites the 2003 European heat wave, which resulted in an estimated 22,000 to 45,000 "excessive deaths" (the number above the normal death totals for the period). That kind of heat is supposed to happen every 50 to 100 years in Europe, he says, but "according to the probabilities of climate change, by 2050 such a heat wave will occur every fourth year in France."

Smith and Shearman say Australia is similar to the United States at the moment—both are countries with conservative national governments that are loath to regulate industry. But Smith points out that even in Australia there's been progress. In November 2006, the New South Wales Land and Mining Court handed down a decision in Gray v. The Minister for Planning and ORS that requires that government agencies now consider the effects of greenhouse gas emissions involved in all new building projects and land development.

Around the world, Smith says there have been successful lawsuits against U.S. companies using human rights arguments against a nation that currently emits the most greenhouse gases per capita but that is not a Kyoto Protocol signatory. Most recently, in March 2007, representatives of the indigenous Inuit people argued before the Inter-American Commission on Human Rights that the United States is violating their rights by causing climate change that threatens their traditional way of life—melting sea ice upon which their villages are built and threatening species upon which they depend for survival. In Europe, meanwhile, the European Union has created a court to hear cases against member states if they don't comply with EU emission standards.

Environmentalists and lawyers who have studied climate change litigation agree that the ideal venue for change would be some kind of world court. Smith says that even the Kyoto Protocol lacks an international judicial forum. He says he has done extensive research on the role that international law might play in reducing global warming, "and it comes to a dead end. It seems that, in the end, it needs to be national laws to get things done."

"In a nutshell," Smith concludes, "each discipline and field can make a contribution. But none of them is sufficient on its own to really carry the weight. It's got to be everyone working together at both the individual and international levels to deal with it. There's no one solution."