19 December 2006
Key Points:
Although a similar challenge in Australia is unlikely given the lack of pertinent Commonwealth legislation on climate change, this case shows the measures that environment groups are prepared to take to force more proactive steps at a federal level.
A coalition of environmental groups has filed a lawsuit against the Bush Administration for failing to produce a report on the impact of global warming on the US. This lawsuit is well-timed as it coincides with the UN Global Summit on climate change in Nairobi where over 6000 delegates from around the world are meeting to try and agree a future set of controls on global greenhouse gas emissions. It is also hot on the heels of the UK Stern report which has generated substantive debate in Australia and the US as well as the UK.
On 14 November 2006, the Center for Biological Diversity, Friends of the Earth and Greenpeace (the plaintiffs), initiated proceedings in the District Court for the Northern District of California against the US Climate Change Science Program, the White House Office of Science and Technology Policy and the Federal Coordinating Council on Science, Engineering and Technology (the defendants) for violating the Global Change Research Act of 1990 by failing to:
One of the key purposes of the Act was to establish a United States Global Change Research Program aimed at understanding and responding to global change, including the cumulative effects of human activities and natural processes on the environment and to promote discussions towards international protocols in global change research. The Act also established a Committee on Earth and Environmental Sciences.
The Act imposes a mandatory obligation on the Committee to prepare and submit a scientific assessment concerning global climate change at least every four years to the President and the Congress an assessment which:
The plaintiffs claim that the last report was due in November 2004 and that the defendant's failure to issue the updated National Assessment Report constitutes "a significant violation of law, impedes fully-informed policy and action on global warming, and has caused substantial harm to the plaintiffs and their interests".[2]
The previous National Assessment Report, "Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change", was released on October 31, 2000. Interestingly, this report predicted a double or threefold increase in heat-related deaths, as well as dramatic weather changes, such as floods, droughts, rising sea levels and more severe storms.
The Act also requires a Research Plan to be updated at least once every three years which establishes global change research goals and priorities for a ten year period.[3] The Research Plan is intended to advance scientific understanding of global change, provide usable information on which to base policy decisions relating to global change and make recommendations for the co-ordination of research activities with international organisations.
The last Research Plan was issued in July 2003. The plaintiffs argue that this is another example of the defendants' failure to produce sufficient scientifically robust information which impairs the ability of federal agencies and departments such as the Environmental Protection Action to carry out their statutory duties (that affect or are affected by climate change) and make informed policy decisions.
On 3 November 2005, the plaintiffs wrote to the defendants requesting full compliance with the Act and the production of the overdue National Assessment Report. The Climate Change Science Program responded stating that in lieu of a single report it was proposing to issue 21 synthesis and assessment products instead over the next few years pursuant to the 2003 Research Plan. In September 2006, following the expiry of the three year deadline to update the Research Plan, the plaintiffs wrote a further letter reiterating the defendants' failure to comply with the Act.[4]
By bringing the action, the plaintiffs are seeking court orders to force the defendants to prepare a follow-up National Assessment Report and update the Research Plan to assess the effects of global warming upon the US environment, economy and public health.
Although a similar challenge in Australia is unlikely given the lack of pertinent Commonwealth legislation on climate change, this case shows the measures that environment groups are prepared to take to force more proactive steps at a federal level. With public opinion in Australia strongly in favour of action being taken sooner rather than later, it will be interesting to see how the long the Commonwealth Government's current "wait and see" approach will continue.
[3] 15 U.S.C, section 2934
[4] Case no. C06 7061 - Complaint for Declaratory and Injunctive Relief - filed 14 November 2006, page 11, paras 40-41
