31 August 2005Insurance JournalDavid Gram
A Sharon, Vermont maple syrup producer and a Burlington law firm have won a key initial round in a lawsuit that environmental groups say marks the first time a federal court has allowed someone to sue over alleged harm from global climate change.
In a ruling issued by a federal district court in California, Judge Jeffrey White threw out the government's bid to have the case dismissed before going to trial.
Arthur and Anne Berndt, who operate a 16,000-tree sugaring operation they call Maverick Farm, joined the environmental groups Friends of the Earth, Greenpeace and other plaintiffs in suing two federal agencies for work that the plaintiffs said promotes global warming.
They sued the Overseas Private Investment Corp. and the Export-Import Bank for helping to finance or insure overseas power plants the plaintiffs said contributed to global climate change.
The government countered that the plaintiffs lacked the legal standing to sue and asked that the case be thrown out of court, a request the court refused.
"This decision opens the door to the courthouse for those who are injured by climate change,'' said attorney Brian Dunkiel of the Burlington law firm Shems, Dunkiel, Kassel and Saunders. He said the ruling marked the first time a U.S. court had allowed a suit to be heard when its main claim alleged harm caused by global warming.
Lawyers for the two government-backed foreign investment agencies argued that the plaintiffs in the case lacked legal standing to bring the suit, in part because they had failed to link pollution from the projects backed by the OPIC and Export-Import Bank to any specific harms.
"Plaintiffs have fundamentally failed to connect their specific alleged injuries with any specific project, groupings of projects, or particular percentage of greenhouse gas emissions much less to an Ex-Im Bank decision to support particular U.S. exports or to an OPIC decision to provide insurance or guarantees to a U.S. lender, investor or contractor,'' the government argued in court papers.
Among the plaintiffs are four cities: Boulder, Colo., and three in California. Boulder alleges several harms from global warming, among them a diminished snowpack in the Rocky Mountains, meaning diminished drinking water supplies for the city. Oakland's worries include rising sea levels and severe weather bringing storm tides that could flood the city's airport.
Berndt, who has operated his sugaring operation since 1988, said the farm's productivity was significantly less than he had expected, given his level of investment in equipment and time.
He said maple sugaring season used to begin in March or even early April but in recent years has begun more often in February and has not lasted as long as it did before. He also said his maple trees are not regenerating as well as they once did.
"The new maples coming up in our sugarbush tend to be stunted. They have a hard time getting going,'' he said. "And the reseeding of the forest seems to be beleaguered.'' He added that populations of tent caterpillars, which often damage maple trees, had grown in recent years.
But Berndt said his concerns extend beyond his own situation.
The United States is "one of the biggest polluters,'' he said. "You'd think in terms of the work of OPIC and the Export-Import Bank we should act as leaders. It's unconscionable for us to be a leader of the world and not lead our way out of the climate change problem.''
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