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April 10, 2009 - Climate Bill Could Trigger Lawsuit Landslide

Self-proclaimed victims of global warming or those who "expect to suffer" from it -- from beachfront property owners to asthmatics -- for the first time would be able to sue the federal government or private businesses over greenhouse gas emissions under a little-noticed provision slipped into the House climate bill.

Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers.

"You could be spawning lawsuits at almost any place [climate-change modeling] computers place at harm's risk," said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.

The bill was written by House Energy and Commerce Committee Chairman Henry A. Waxman, California Democrat, and Rep. Edward J. Markey, Massachusetts Democrat. Both lawmakers declined repeated requests for comment.

The Waxman-Markey blueprint, including the lawsuit provision, has just been released, and the Senate is drafting its own energy bill. But Mr. Waxman has set an accelerated schedule for passing the bill through his committee by Memorial Day and President Obama lists an energy overhaul bill as one of his top priorities.

Senior counsel with the Natural Resources Defense Council said the measure is similar to a landmark environmental ruling from the Supreme Court allowing states to sue the federal government for damages from climate change -- largely on the basis of lost shorelines from rising sea levels -- but did not set grounds for people to file lawsuits.

"The [Chamber of Commerce] is trying to say the global-warming legislation is scarier than global warming itself," he said. "It's part of a menu of scare tactics they are compiling."

Under the House bill, if a judge rules against the government, new rules would have to be drafted to alleviate the problems associated with climate change. If a judge rules against a company, the company would have to purchase additional "carbon emission allowances" through a cap-and-trade program that is to be created by Congress.

The measure sets grounds for anyone "who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part," to government inaction to file a "citizen suit." The term "harm" is broadly defined as "any effect of air pollution (including climate change), currently occurring or at risk of occurring."

It would allow citizens to seek up to $75,000 in damages from the government each year, but would cap the total amount paid out each year at $1.5 million, committee staff said. It is unclear whether the provision would actually cap damages at $75,000 per person, because the U.S. law referenced does not establish payouts by the government.

The $1.5 million cap reflects a compromise reached with House Republicans in a 2007 version of the measure introduced by Mr. Waxman, committee staff said. Mr. Waxman and Mr. Markey wrote the measure into a broader climate plan introduced last week, although it was left out of a bill summary that committee staff provided at the time.

Republican committee staff said the measure has the potential to muddle the judicial system.

Democratic staffers said the measure provides guidance to the courts on how to apply existing Clean Air Act provisions. Private citizens can sue the government based on harm caused by pollutants currently regulated under the Clean Air Act -- including nitrogen oxide and sulfur oxide -- but they lack standing to sue for damages resulting from climate change.

Regulating carbon dioxide has been a hard slog for environmentalists, and some energy analysts say that the Waxman-Markey bill and parallel efforts by the Obama administration constitute a multifaceted attempt to achieve the goal by regulation if legislative attempts fail.

The "citizen suit" would allow people to force government action on climate change, seemingly a redundancy in a bill that would achieve that goal if passed. But environmentalists have been cautious in their tack, arguing that many environmental protections on the books were not vigorously enforced under the Bush administration.

Environmental lawyers played down the significance of the provision, insisting the measure would not guarantee payouts from the government or successful lawsuits, but would set the bar for people seeking to force the government to act on climate change.

Environmental lawyers have likened the measure to tort laws regarding cigarette smoke or cancer-causing chemicals, in which the harmful effects are not seen for decades.

Expansion of the Clean Air Act to allow "citizen suits" on climate change has been a goal among environmental groups and moderate to liberal Democrats for many years -- although the measure has never succeeded.

But amending the Clean Air Act is "potentially a big gamble" because it opens other sections of the act to modification during the bill-drafting process, said a Democratic energy lobbyist, who spoke on the condition of anonymity because of ties to committee members.

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