© 2001  Karen Selick
A Rising Sea of Lawsuits

An edited version of this article first appeared in the October, 2001 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.

Warming Up Those Lawsuits

Lawyers who want to get in on the ground floor of the next blockbuster trend in litigation might give some thought to trolling for business in the islands of the South Pacific.  According to recent news reports, third-world countries like Vanuatu (a collection of 80 islands located about 1,300 miles northeast of Sydney, Australia) are making plans to sue Canada, the U.S. and other developed countries, probably in U.S. courts.

The grounds?  That global warming will cause sea levels to rise, swamping portions of the islands and further limiting their already modest agricultural output.  According to one United Nations report, there are already 450 million undernourished people in such areas.  The report forecasts that their food output will decline by as much as 25 percent.  Meanwhile, places such as Canada will profit, since a warmer environment will expand the percentage of our land mass suitable for farming. 

I wish I were joking about this, but I’m not.  The Centre for International Environmental Law, based in Washington, D.C., has been gushing enthusiastically to reporters about this "obviously… massive" potential lawsuit.  Even the International Red Cross has suggested the establishment of an "international climate tort court".

Apparently, global warming propaganda has become so firmly entrenched in the popular psyche that these folks seem to think that proof of their claim—not only the existence of significant warming, but the identity of some wicked perpetrator responsible for it—will be an open-and-shut case.  

However, a recent article by Michael Heberling called "Unprecedented Global Warming?" in the Foundation for Economic Education’s magazine Ideas on Liberty should give them pause.  Heberling points out that the earth has warmed and cooled repeatedly for over a million years, all before the fossil-fuel emissions of evil North American energy consumers began.   One recent example: a pronounced warm spell from 700 AD to 1400 AD in which average temperatures are believed to have exceeded today’s by as much as 1.5 degrees Celsius.  The English grew grapes and actually competed with the French in wine-making for two of those centuries.  In the Alps, the tree line was 300 meters higher than today’s.

Did you ever wonder how Greenland got its name?  That’s because it really was green, back when the Vikings first settled there around 1000 AD.  "Sheep and dairy cattle were able to graze in areas that are today—icebound,"  writes Heberling.

There’s good reason to believe that the warming trend of the past century—which saw average global temperatures rise only half of one degree Celsius—is simply another of nature’s random fluctuations, entirely unrelated to human activity.  Indeed, most of the tiny temperature increase occurred during the first half of the twentieth century, before any detectable rise in man-made greenhouse gases.  So when the plaintiffs are drafting their pleadings, let’s hope they don’t forget to add Gaia, or perhaps God, as defendants.

But assuming they overcome the hurdle of establishing causation and identity—requirements that appear to have been largely dispensed with in U.S. courtrooms these days—the plaintiffs might still have some difficulty quantifying their damages. 

The effect of greenhouse gases in the atmosphere is by no means clearcut.  Some scientists hypothesize that warmer temperatures would lead to more snow in the Arctic, increasing the size of the polar ice cap and lowering, not raising, sea levels.  Maybe Vanuatuans will have larger, not smaller, acreages to farm.

As well, Dr. Sherwood B. Idso, of the U.S. Department of Agriculture’s Agricultural Research Service, points out that "literally hundreds of experiments…have convincingly demonstrated that the more CO2 there is in the air, the better plants perform their many vital functions," including the production of flowers and fruit.  So even if Vanuatuans have less land to sow, a CO2-induced increase in plant productivity might still give them greater yields to reap. 

But even if these benefits fail to materialize, the issue of mitigation should not be overlooked.  The  would-be plaintiff countries have not been doing an impressive job of feeding themselves as it is, entirely apart from any threat that global warming may present.  In Vanuatu, for instance, 80 percent of the population is employed in agriculture—yet the U.N. tells us they’re already undernourished.  Compare Canada and the U.S., where less than 3 percent of the population is employed in agriculture, yet people are getting so much food that obesity is becoming epidemic. 

Nor does the ability to feed your population depend upon having vast expanses of arable land. Singapore--much smaller than Vanuatu and among the most densely populated countries on the planet--has virtually no arable land and almost no-one employed in agriculture, yet its per capita income exceeds Canada’s and its people eat well.

What keeps people poor and undernourished in today’s world is not a lack of land.  It’s not the unavailability of information about modern agricultural methods.  It’s the absence of a legal and political climate necessary to allow ingenuity and productivity to flourish.  A regime of individual rather than collective property ownership, respect for property rights and contracts, and freedom from government interference in people’s lives would do more to enrich impoverished nations than thrusting their hands into deep pockets in a U.S. courtroom.


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March 2, 2003