Hit Polluters Where it Hurts Next Earth Day: In the Courts

Since the first Earth Day forty years ago, the eco-holiday has become the most important day on the eco-calendar, but our celebration of it has remained mostly static. A set of domestic and international lawsuits being kicked around in the courts could enable future Earth Days to complement their symbolic power by becoming the launching pad for hard-hitting legal challenges against the world's biggest polluters.

In the past, some judges have steered clear of weighing in on environmental issues, calling them political in nature. But under the banner of a new green collaborative reporting effort, Slate and Mother Jones reported this week on the increasing likelihood that judges will begin taking environmental nuisance claims seriously.

Earlier this year, the Federated States of Micronesia, a tiny island nation in the South Pacific, sued the Czech Republic's foremost environmental villain, the Prunerov power plant, saying its pollution directly led to rising sea levels that threaten the FSM's existence. Last year, rising sea levels forced the FSM to declare a state of emergency and spend more than 7 percent of its budget to clean up the mess. Like Tuvalu, another island nation in danger of drowning, FSM doesn't have many options. But "if we can take our gaze to an international court," said Andrew Yatilman, the country's director of environment and emergency management, "that would be an avenue the government may have to explore."

Here in the United States, the Inupiat community of Kivalina, Alaska has sued 19 U.S. energy companies for spewing pollution that has led to sea increases that threaten to force the village to relocate at a cost of $400 million. Mother Jones reports that this lawsuit is based on "the same common-law principle you might deploy to sue your neighbor if he opened an obnoxiously loud nightclub next door."

Matthew Pawa, one of the lawyers representing Kivalina says that, while the prospects of success for this suit are unclear, continued legal challenges to major polluters will reach a tipping point when judges will begin to pay attention. "It's a process of learning by doing," he says. "Just by bringing these cases over and over again, the judiciary [and] the public get used to the idea of liability."

If Pawa is right, it won't be long before the public automatically equates major polluters with climate change. But, as we've seen through epic battles over tobacco and asbestos, making that connection stick in court is trickier business. Still, news collaborative reports on the few shining examples of environmental regulation through the courts, dating back nearly 100 years.

So next year, on the 41st anniversary of Earth Day, environmental activists should try something new: combine the symbolic power of the day with existing judicial precedent, and the growing public will to save places like FSM, Tuvalu, and Kivalina to build a massive legal challenge to polluters here in the U.S. and abroad.

Photo credit: rpeschetz