U.S. Sen. Jim Inhofe (R-Okla.) a leading conservative opposed to the Law of the Sea Treaty (LOST) yesterday corrected Senate Foreign Relations Committee Chairman John Kerry (D-MA) on the issue of environmental litigation resulting from LOST. During yesterday's hearing, Kerry constructed a highly misleading "straw man" argument.
"At yesterday's Senate Foreign Relations Committee hearing on LOST, a false narrative was presented, and must be corrected," said Inhofe. "Chairman Kerry insisted that if the U.S. joins LOST it will not require the U.S. to enforce treaties our nation is not signed onto such as the Kyoto Protocol on climate change. Kerry concludes that because of this the U.S. will be exempted from environmental litigation.
"That is simply false."
Inhofe continued, "Neither I nor anyone else has argued that the U.S. would be subject to environmental lawsuits for environmental treaties the U.S. has not signed. Rather, the real concern is that baseless and costly environmental lawsuits brought under LOST may be based on much broader areas of international law than just those treaties that the U.S. has not ratified, including internationally recognized norms and standards.
"The threat of baseless environmental lawsuits is very real, and no amount of straw man arguments can prove otherwise. International environmentalists, academics, and lawyers have already made clear their intention to bring such lawsuits immediately against the U.S. should we join LOST. We should take them at their word, and reject LOST."
THE FACTS ABOUT LOST & ENVIRONMENTAL LITIGATION:
Ø Article 213 of LOST, titled "Enforcement with respect to pollution from land-based sources" would require the U.S. to adopt laws and regulations to "implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources."
Ø In 2003, the Washington, D.C.-based Environmental Law Institute published "The Legal Option: Suing the United States in International Forums for Global Warming Emissions" by law professor Andrew L. Strauss. According to Strauss. It states that the U.S. rejection of the Kyoto Protocol "makes the United States the most logical first country target of a global warming lawsuit in an international forum." The article proposed various forums for initiating a lawsuit against the United States, including LOST's compulsory dispute resolution mechanisms, but Strauss lamented, "As the United States has not adhered to the Convention, however, a suit could not be brought directly against it under the Convention."
Ø In her 2005 book Climate Change Damage and International Law, law professor Roda Verheyen posed a comprehensive hypothetical case that could be brought against the United States for its alleged responsibility in melting glaciers and causing glacial outburst floods in the Himalayas. The claim would include compensation for flood damages as well as additional funds to monitor glacial lakes and prevent future floods. Verheyen based liability for such damages on the U.S.'s alleged violation of its commitments under the UNFCCC and failure to ratify the Kyoto Protocol.Ø In 2006, the International Journal of Sustainable Development Law & Policy published "Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention," in which law professor William C. G. Burns cited LOST's marine pollution provisions as a basis for a cause of action for rising sea levels and changes in ocean acidity. Burns named the United States as "the most logical State to bring an action against given its status as the leading producer of anthropogenic greenhouse gas emissions, as well as its failure to ratify Kyoto," but noted that the U.S. "is not currently a Party to the Convention."
Ø If another country thinks that the U.S. has failed to comply with Article 213 in regard to, say, internationally accepted standards on carbon emissions, that country may sue the U.S.--regardless of whether the U.S. is a party to the Kyoto treaty. Other countries could also point to U.S. commitments in the U.N. Framework Convention on Climate Change (which the U.S. is a party to) or other universally accepted environmental standards such as the "no harm" rule as the basis of climate change lawsuits against the United States. The U.S. would become environmental lawsuit target number one, and crippling costs to the U.S. economy would result.