The New York Times has an item on a series of climate change lawsuitsthat are making their way through the courts around the U.S. Already, two federal appeals courts have reversed decisions by federal district courts to dismiss climate-change decisions. One of the cases (Comer v. Murphy Oil USA (5th Cir. Miss. October 16, 2009)), a decision of the Court of Appeals for the 5th Circuit, involved Gulf Coast property owners who claimed property damage resulting from Hurricane Katrina. The plaintiffs sued several large energy and power companies for compensatory and punitive damages, charging that these were caused by greenhouse gases emitted from their operations.

Now the the Alaskan village of Kivalina is appealing the decision of a federal judge in San Francisco which dismissed its claim against several companies, most notably ExxonMobil and Shell Oil, aimed at forcing them to pay the costs of relocation to the mainland, estimated at $US400 million, alleging that the defendants helping are responsible for the climate change that the village claims is destroying its island.

Though Canadian courts have contributed little case law on the matter, large emitters of greenhouse gases in Canada should carefully monitor U.S. rulings on the matter. According to this Fraser Milner Casgrain report:

“While the decisions discussed above involve U.S.- specific claims, owing in large part to the United States Constitution, the cases raise certain legal principles that are universally relevant. While climate change litigation would be novel in Canada, it could ostensibly be based on similar principles of tort law available in the U.S., including the common law claim of nuisance. Although the political question and standing doctrines do not flow from the Constitution in Canada (as they do in the United States) they are the subject of fundamental common law principles. Consequently, any actions brought in Canada would invariably need to address the suitability of the court system to resolve climate change litigation. Additionally, courts would need to grapple with the concept of contribution and whether a defendant’s contribution to a worldwide problem is in itself sufficient to result in liability, when the defendant is one of many worldwide emitters of greenhouse gases.”

Joseph E. Stiglitz, 2001 Nobel Laureate and Professor in Economics at Columbia University, concludes that world leaders at the Copenhagen climate conference failed not only to reach a binding agreement, but also to agree on how to save the planet. An entirely new strategy is needed, he says, to effectively address climate change:

“Perhaps it is time to try another approach: a commitment by each country to raise the price of emissions (whether through a carbon tax or emissions caps) to an agreed level, say, $80 per ton. Countries could use the revenues as an alternative to other taxes – it makes much more sense to tax bad things than good things. Developed countries could use some of the revenues generated to fulfill their obligations to help the developing countries in terms of adaptation and to compensate them for maintaining forests, which provide a global public good through carbon sequestration.

We have seen that goodwill alone can get us only so far. We must now conjoin self-interest with good intentions, especially because leaders in some countries (particularly the United States) seem afraid of competition from emerging markets even without any advantage they might receive from not having to pay for carbon emissions . A system of border taxes – imposed on imports from countries where firms do not have to pay appropriately for carbon emissions – would level the playing field and provide economic and political incentives for countries to adopt a carbon tax or emission caps. That, in turn, would provide economic incentives for firms to reduce their emissions.”

This is an interesting idea, as it essentially shifts the focus away from getting each country to meet hard emissions reduction targets to setting the price of carbon, a simpler proposition from an economic point of view. Agreeing to hard caps can be politically contentious. Stiglitz’ approach might be more viable.

Both environmentalists and climate change skeptics should read this opinion piece in the Wall Street Journal by Nigel Lawson, who for years was Chancellor of the Exchequer in Margaret Thatcher’s Government.

Lawson is long-time critic of the Kyoto Protocol and, for a while at least, sided firmly with global warming skeptics. He’s nuanced his arguments in the last few years recognizing now that global warming is a reality that will have a negative, albeit moderate, impact on us. But he has little time for alarmist and apocalyptic statements from climatologists and climate change policy advocates.

Lawson proposes we “abandon the Kyoto-style folly that reached its apotheosis in Copenhagen last week, and move to plan B,” which essentially boils down to adaptation, plus modest increases in government investment in technological research and development.

This hardly amounts to much of a solution, however Lawson’s analysis of why Copenhagen failed is spot on:

1. The massive cost of decarbonizing the world’s economies because carbon-based energy is likely to remain the cheapest form of energy for the foreseeable future

2. Solving climate change is about negotiating a solution on how to share the burden between the developed world, responsible for the bulk of past emissions, and the developing world, which will likely be responsible for a sizeable chunk of future emissions.

His most insightful comment on the dilemma facing the developing world is this:

And the overriding priority for the developing world has to be the fastest feasible rate of economic development, which means, inter alia, using the cheapest available source of energy: carbon energy.

Moreover, the argument that they should make this economic and human sacrifice to benefit future generations 100 years and more hence is all the less compelling, given that these future generations will, despite any problems caused by warming, be many times better off than the people of the developing world are today.

For an interesting debate pitting Nigel Lawson and author Bjorn Lomborg on one side against Green Party leader Elizabeth May, and George Monbiot, on the other, check out the Munk Debates site.

Eric Reguly of the Globe and Mail reports from Copenhagen that Canada is clearly in the proverbial doghouse. And indeed, one gets the feeling it’s Canada’s amateur hour at the talks. Still, the seemingly unanimous chorus of disapproval is odd, considering that our reduction targets are broadly similar to those of the U.S. But the difference is: Canada ratified Kyoto. The Americans didn’t. They took their licks when the Bush administration decided to withdraw U.S. support for the Protocol. Defenders of Canada’s position tend to argue that we must not share the burden alone, or that China should do more. But remember: Countries that ratified the Kyoto Protocol agreed to reduce emissions of six greenhouse gases that contribute to global warming. At the end of the day, Canada’s problem in Copenhagen is one of broken trust, based on its behaviour over the last few years. Both Conservative and Liberal governments have themselves to blame for that.

Stephen McIntyre is the Toronto-based editor of Climate Audit, a blog that brings a critical perspective to climate data. He was recently profiled in this Macleans article and in a Toronto Star piece this weekend. Interestingly, according to the article, McIntyre was mentioned over 100 times in the Climategate leaked e-mails from the University of East Anglia’s Climatic Research Unit. The suggestion is that McIntyre’s work is one of the motivations behind the suppression of data by climate change advocates involved in the scandal. Fans say he at least has the merit of holding scientists accountable — never a bad thing.