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The Man Who Makes Greenhouse Gas Polluters Face Their Victims in Court

Attorney Matt Pawa has applied tort law to global warming and provoked groundbreaking rulings

By Amy Westervelt

Jun 22, 2010

The blame game is a well-known political and legal ploy for avoiding responsibility. When the US pulled out of the Kyoto Protocol in 2001, the President's finger pointed at China. When the Deepwater Horizon exploded in the Gulf of Mexico, BP, Haliburton and Transocean executives each needed two hands to shift the blame at each other in front of a Senate hearing.

The thinking behind that line of defense is that it can't possibly be fair to hold one party responsible for a wrong, unless everybody else involved in the wrongdoing is held responsible, too.

Attorney Matt Pawa knows the law is a lot smarter than that childish logic -- thanks in particular to a branch of jurisprudence known as tort law -- and that's why he's ready to do battle against greenhouse gas polluters with an age-old solution: Sue the bastards.

“When I first read the IPCC [Intergovernmental Panel on Climate Change] report in 1995, where the scientists notified the world of their conclusion that there was a causal connection between anthropogenic actions and the warming we’re experiencing today … the light went off in my tort lawyer’s head that we could prove a case,” Pawa told SolveClimate recently.

Ever since, Pawa has been working tirelessly to establish global warming as a "public nuisance" under tort law, holding corporations accountable for their greenhouse gas pollution and forcing them to face their victims in court.

Proving causation is always one of the primary hurdles in tort cases, according to Pawa, and with scientific evidence linking emissions to climate change, the law is now on the environment’s side.

“Companies couldn’t possibly be causing impact this widespread and not be committing tort,” he said.

At the time, Pawa was handling tort and anti-trust cases at Cohen, Milstein, Hausfeld & Toll in Washington, D.C. While continuing to work on his caseload there, Pawa began to ramp up his environmental law knowledge, finally striking out on his own to see if he could build a viable tort case related to climate change.

“It took me going out on my own and spending three years doing research to understand how this could be done,” he said. “I worked with attorneys generals offices, and a lot of people who put a lot of thought and effort into it, and by 2004 we felt like we had found a way to connect all the dots and that’s when we filed our first case.”

Regulation v. Litigation

That case—Connecticut, et al. v. American Electric Power Co., et al.—was filed on behalf of the states of Connecticut, California, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and the City of New York, as well as three land trusts (Open Space Institute, Audobon Society of New Hampshire and Open Space Conservancy). It was the first tort case against greenhouse gas polluters and it was brought against the five largest CO2 emitters in the country: American Electric Power Co., American Electric Power Service Co., Southern Company, Tennessee Valley Authority, Xcel Energy Inc., and Cinergy Corp.

“The Connecticut attorney general’s office called me back in 2001; they had seen a memo I had written, outlining some initial thoughts on how this could be done, which NRDC had shared with them, and they were intrigued by it so they called me in for a meeting,” Pawa explained.

The prosecution sought injunctive, rather than monetary, compensation, seeking a court order for the utilities to reduce their greenhouse gas emissions. While the defense tried to argue that such mandates were better left in the hands of Congress and the President, and that, since the legislative and executive branches of the government were working on regulating emissions, the courts had no role to play.

“The argument certainly had some appeal—I mean, what judge wants to get involved with regulating greenhouse gas emissions? It’s appealing to say ‘We should just let the legislative branch handle this,’ but that’s not actually how our government works,” Pawa said. “Judges don’t just stay their hands because of what legislators are doing; that argument turns law on head.”

Excellent work! All the best

Excellent work! All the best with your future cases!

Great profile. Matt is

Great profile. Matt is doing incredibly valuable work that does not get enough attention. The Kivalina case needs to be watched very closely.

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