Friends of Earth climate change lawsuit nearing settlement
*Updated 2/9/09 - added links to text of proposed settlement agreements.
A groundbreaking global warming lawsuit is now on the verge of settlement in the Northern District of California. The lawsuit, Friends of the Earth, Inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), was originally filed in 2002 against the Overseas Private Investment Corporation (“OPIC”) and the Export-Import Bank of the United States (“Ex-Im”). The Plaintiffs – Friends of the Earth, Inc. (a non-profit environmental advocacy organization), Greenpeace, Inc. and the cities of Boulder (CO), Oakland (CA), Arcata (CA) and Santa Monica (CA) – claimed that OPIC and Ex-Im – federal agencies providing loans, insurance or other assistance for fossil fuel projects around the globe – funded projects without complying with the requirements of the National Environmental Policy Act (“NEPA”).
Text of proposed agreements:
The case originally made headlines in August, 2005 when the Court determined that the Plaintiffs had the legal right to bring suit against OPIC and Ex-Im for funding projects in other areas of the world because United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an effect on the environment of the United States,” said Sue Ellen Harrison, the assistant city attorney for plaintiff city Boulder, Colorado.
Refusing to dismiss the case on summary judgment, the court determined that standing existed because Plaintiffs had introduced evidence that: “(1) increased greenhouse gases are the major factor that caused global warming in the twentieth century, (2) global warming that has already occurred has had significant environmental consequences, (3) continued increases in greenhouse gas emissions would continue to increase global warming with consequent widespread environmental impacts, (4) and that these impacts have and will effect areas used and owned by Plaintiffs.”
Before commencing a project that could have environmental impacts, NEPA requires (1) a determination of whether the project will significantly affect the environment, and, if so, (2) the preparation of an Environmental Impact Statement (EIS) detailing the environmental effects and options for alternative actions. OPIC and Ex-Im had claimed they were not required to comply with NEPA requirements before funding projects.
Now, though the settlement agreement is subject to judicial approval, OPIC and Ex-Im have agreed to implement NEPA’s evaluation requirements for at least some of the projects the agencies fund. OPIC has agreed to subject “Category A” projects (those resulting in the emission of more than 100,000 tons of carbon dioxide) to federal regulations, report the greenhouse gas emissions of those projects and reduce the greenhouse gas emissions of those projects by 20 percent over the next ten years. Similar steps will be taken by Ex-Im’s officials to address the global warming effects of projects funded by the agency.
Similar lawsuits seeking to require consideration of greenhouse emissions before approving funding on projects have been filed in other countries, including Germany (Germanwatch v. German Federal Ministry of Economics and Labour) and Australia (including Australian NGOs v. Minister of Planning, in Melbourne Australia). Given the new administration’s tougher stance on global warming, it seems reasonable to assume that there will be an upsurge in these types of lawsuits in the coming years.
