25 August 2005Environment News Service
A federal judge has decided that two environmental groups and four cities have the right to sue the federal government based on allegations that financial investments made by government agencies may have harmed the United States by increasing the intensity of global warming.
The ruling Tuesday by Judge Jeffrey White of the U.S. District Court for the Northern District of California is the first time that a federal court has granted legal standing for a lawsuit exclusively alleging injury from global warming and challenging the federal government’s failure to evaluate the impacts of its actions on the Earth’s climate and U.S. citizens.
The case, filed in August 2002 by Friends of the Earth, Greenpeace, and four cities, charges that the Export-Import Bank (Ex-Im) and the Oversees Private Investment Corporation (OPIC) have provided financial assistance to oil and other fossil fuel projects without first evaluating the projects’ global warming impacts to the United States.
The unprecedented lawsuit alleges that OPIC and Ex-Im illegally provided over $32 billion in financing and insurance for oil fields, pipelines and coal-fired power plants over the past 10 years without assessing their contribution to global warming, or their impact on the U.S. environment as required under the National Environmental Policy Act (NEPA).
The cities of Oakland, Arcata and Santa Monica, California and Boulder, Colorado are parties to the lawsuit that the judge ruled may now proceed.
OPIC, an independent government corporation, offers insurance and loan guarantees for projects in developing countries. Ex-Im, an independent governmental agency and wholly-owned government corporation, provides financing support for exports from the United States.
Many of the projects funded by OPIC and Ex-Im are power plants which emit greenhouses gases that the groups and cities allege cause global warming.
The cities and groups argued that the National Environmental Policy Act, which requires environmental assessments of proposed development projects in the United States, should apply to projects overseas financed by U.S. government agencies.
They contend that U.S. law should apply because those projects are producing greenhouse gases which add to global warming, contributing to the degradation of the U.S. environment and harming the members of Greenpeace and Friends of the Earth and residents of the four cities.
The judge denied the motion for summary judgement by OPIC President and CEO Peter Watson and then Ex-Im Vice Chairman and First Vice President Phillip Merrill, explaining that a summary judgment procedure is used to identify and dispose of factually unsupported claims. His ruling means that the environmental coalition's claims deserve to be heard in court and judged on their merits.
The government agencies' claims that the case should be dismissed because the Plaintiffs lack standing, because OPIC and Ex-Im have not taken any action subjecting them to judicial review, and that OPIC is exempt from complying with the National Environmental Policy Act were all rejected by the judge.
To show that Greenpeace deserves standing, which is the right to pursue a case before the court, Greenpeace member and employee Melanie Duchin of Anchorage, Alaska said in a declaration submitted to the court that the actions of OPIC and Ex-Im directly impact her life. Decisions of the agencies are responsible for climate change that contributed to massive fires across the state last summer, and melting of the Arctic ice that makes her biological work more dangerous, Duchin declared.
John Passacantando, executive director of Greenpeace, Inc., based in California and Washington, DC, explained that his group's 250,000 members "seek to increase funding for projects that increase renewable energy deployment."
"Global warming is Greenpeace’s ongoing priority campaign worldwide," Passacantando declared. "The current campaign is focused on monitoring accelerating capital investment in energy projects in developing countries."
Norman Dean, executive director of Washington, DC- based Friends of the Earth (FOE), explained in his declaration that together with the other member groups of Friends of the Earth International in 70 countries, his 300,000 member group works to focus the attention of the public, our members, and government decision makers on the government financing and subsidies provided to fossil fuel use and combustion.
"These subsidies are often funded with the use of taxpayer funds, including those of our members," Dean stated to explain why his group should be granted the standing to pursue the lawsuit.
For the City of Arcata, California, Deputy Director of Environmental Services Mark Andre declared that over the period 1887 to 2000 temperatures monitored five miles south of the city increased "about 2.1 degrees Fahrenheit." Andre said annual rainfall amounts have decreased about 10 percent between 1857 and 2000, but extreme wet weather events have become more frequent.
Andre declared that the sea level along the California coast has "risen by about four inches" and is projected to rise up to "3.5-35 inches between 1990 and 2100."
As the sea rises, Arcata's low-lying lands would be inundated with sea water, negatively affecting the city's wastewater treatment plant, storm water and sewage infrastructure and a wildlife refuge, Andre declared.
Judge White, who was appointed by President George W. Bush in 2002, concluded that evidence offered by the plaintiff groups and cities “is sufficient to demonstrate it is reasonably probable that emissions from projects supported by OPIC and Ex-Im ... will threaten Plaintiffs’ concrete interests.”
The judge highlighted evidence demonstrating that “projects supported by OPIC and Ex-Im are directly or indirectly responsible for approximately 1,911 million tonnes of carbon dioxide and methane emissions annually, which equals nearly eight percent of the world’s emissions and is equivalent to one third of the total carbon emissions from the United States in 2003.”
OPIC and Ex-Im argued that most large energy-related projects in which either agency is involved would proceed without their support. But the judge was persuaded by evidence submitted by the cities and groups demonstrating a stronger link between the agencies’ assistance and the energy-related projects. "For example," he wrote, "Ex-Im has stated that it 'supports export sales that otherwise would not have gone forward.'”
“This ruling is a wake up call for the federal government to tackle the growing environmental and human impacts of global warming,” said FOE's Dean.
”This case once again highlights the fact that global warming pollution doesn’t recognize political borders,” said Kert Davies, research director of Greenpeace. “The judge acknowledged that these taxpayer funded projects in other countries have impact back home in the United States.”
Oakland Mayor Jerry Brown said, "Tragically, the federal government is violating federal law, which requires an assessment of cumulative impacts. This injures the citizens of Oakland, and every person in this country. We'll fight as long as it takes to get federal law properly enforced."
The government agencies do not comment on litigation while it is still before the courts. Phillip Merrill, who was Vice Chairman and First Vice President of the Export-Import Bank at the time the lawsuit was filed, rose to become President and Chairman of the Bank, and then stepped down from that position when his term ended on July 20, 2005.
