Air Date: Week of February 14, 2003

Several cities, along with conservation groups, are suing the Export-Import Bank of the United States and the Overseas Private Investment Corporation. The plaintiffs allege that these federal agencies are violating the National Environmental Policy Act by not filing information on how the projects they fund contribute to climate change. Host Steve Curwood talks with Pat Parenteau of the Vermont Law School about the case.

Transcript

CURWOOD: Welcome to Living on Earth. I’m Steve Curwood. Three U.S. cities are going to court to force the Bush administration’s hand on its climate change policy, and they’re using an unusual legal strategy. Boulder, Colorado, and Arcata and Oakland, California, along with the environmental groups Friends of the Earth and Greenpeace, have filed a lawsuit in U.S. District Court in northern California.

Their suit alleges that the Overseas Private Investment Corporation and the Export-Import Bank of the United States, don’t follow the rules when they fund coal and other fossil fuel projects abroad that emit greenhouse gases. Under the National Environmental Policy Act, or NEPA, the government must conduct environmental assessments of its activities if they might harm the environment. The cities say there’s ample evidence that burning fossil fuel is changing the climate and adversely effecting their local environments. And they claim the government has failed to assess the impact of climate change from its lending programs.

The U.S. Justice Department isn’t talking about the case while it’s pending. But I did speak with Pat Parenteau, professor at Vermont Law School, who’s been following the case. He says the plaintiffs hope to bring greater scrutiny to federal energy policy.

PARENTEAU: It’s kind of a double whammy. I think the political point that these cases are making is it’s bad enough that we’re not getting our own house in order, but when you take taxpayer money and invest in polluting facilities in the rest of the world, you really have to ask the question: what are we doing, and why are we doing it?

CURWOOD: Let’s look at the law involved here in this case. What do the plaintiffs need to prove to win?

PARENTEAU: They have to demonstrate primarily that the projects that these two institutions are funding are, in fact, increasing CO2 emissions. And then they’re going to have to make a connection between the increase in CO2 from these projects and effects that can at least be identified as potentially significant. They don’t have to prove beyond a shadow of a doubt that this is what’s happening, but for purposes of NEPA, they have to show there is a credible threat as a result of the actions that these two agencies are taking.

CURWOOD: And what do you think the defense will say here?

PARENTEAU: Their initial move will be to say “we’re not even going to address your arguments that we’re not complying with NEPA because you, individuals, and you, cities, don’t have the required standing to bring this case.” So, they will be challenging the plaintiffs to demonstrate how they, individually, are affected by global warming. If they fail to get the case dismissed, then they’re going to argue “well, we’re already doing this kind of environmental assessment. It’s true that we don’t involve the public in that. But we do internally look at the impacts of what we’re doing. And what we’ve found is there’s very little impact. So there’s really no need here to go to the trouble of doing an environmental impact statement, since our own analysis shows there’s really not a big problem.”

CURWOOD: I’m noticing something rather interesting in this case--tension over where, in fact, to hold it. The plaintiffs have filed in California. The government wants the case moved to Washington, D.C. What’s going on here?

PARENTEAU: The plaintiffs want to be in California because that’s the best place to be if you’re an environmental plaintiff. The courts in that part of the country have been very open to allowing environmental organizations to sue under statutes like NEPA. And so, they want to remain there and they’re arguing that’s where their headquarters are located for two of the conservation organizations. That’s where the City of Arcata and the City of Oakland are located, obviously. So, they’re saying, we belong here. The government, on the other hand, would like the case to be heard in Washington, D.C., where the court that oversees that part of the country is much more conservative and requires a much higher showing for environmental groups to demonstrate this requirement of standing or injury.

CURWOOD: How important is this case against the international financing agencies in the realm of U.S. policy and climate change?

PARENTEAU: Once the principle is established here that NEPA does require agencies to consider the effects of their actions on global warming, then I think you can see a lot of other cases being filed challenging other federal actions and agencies that are also involved in activities that may affect global warming. So, you might see a cascading effect where this case triggers another case, or at least triggers other agencies to wake up and start asking themselves “wait a minute, are we doing things that are making global warming worse, and are there some things that we could do that would make it better?”

CURWOOD: It seems that the season is upon us to sue the federal government over climate change. There are other cases. Particularly, I’m thinking of the recent announcement by Massachusetts, Connecticut, and Maine that they have filed formal notice to take the Environmental Protection Agency to court, demanding that the EPA regulate carbon dioxide as a pollutant under the Clean Air Act. Can you explain to us the difference between that case and the Overseas Private Investment Corporation/Export-Import case?

PARENTEAU: Yes. That’s a very interesting case, very different from the NEPA case. That’s claiming that the Environmental Protection Agency has a mandatory duty to list carbon dioxide as what’s called a “criteria pollutant” under the Clean Air Act. And unlike NEPA, which simply requires that the impacts be disclosed to the public in an Environmental Impact Statement, the Clean Air Act actually has teeth. It says if there’s a pollutant being emitted and it’s not meeting the standard the EPA has set for it, then it has to be reduced. So that case has some very interesting potential to actually require significant reductions in CO2 emissions in the United States.

CURWOOD: Pat Parenteau is a professor of Environmental Law at Vermont Law School. Thanks so much for taking this time.

PARENTEAU: Thanks for having me on, Steve.

 

Links

Climate change lawsuit website