Agenda #4k
memorandum
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
Ralph D. Karpinos, Town Attorney
subject: Response to Petition Regarding Support for Environmental Lawsuit
date: October 10, 2005
The attached resolution would authorize the Mayor to contact the National League of Cities and the U.S. Conference of Mayors and seek their possible support of a lawsuit to require compliance by U.S. development projects overseas with U.S. environmental standards.
BACKGROUND
On September 12, 2005, the Council received and referred to the Manager and Attorney a petition asking the Council to “consider and take whatever action, if any, it deems appropriate to provide aid and support to the plaintiffs” in a lawsuit seeking compliance with United States environmental regulations by U.S. backed development projects in other countries. Attachment 1 is a copy of the petition.
The lawsuit referred to in the petition was filed in 2002. It is a federal lawsuit filed in the U.S. District Court for the Northern District of California. The named plaintiffs now include: Friends of the Earth, Inc.; Greenpeace, Inc.; and the cities of Boulder, Co, and Arcata and Oakland, CA. The named defendants are the president and CEO of the Overseas Private Investment Corporation (OPIC) and the vice president of the Export-Import Bank of the U.S. (the Bank). OPIC is an independent government corporation. The bank is an independent governmental agency and a wholly-owned government corporation. The suit alleges that the defendants’ companies are providing financial assistance for projects in developing countries for projects that contribute to climate change without complying with the requirements of the U.S. National Environmental Policy Act.
The most recent significant action in the lawsuit was the entry, on August 23, 2005, of an Order Denying Defendants’ Motion for Summary Judgment. In this order, Attachment 2, the Federal District Court Judge, ruled that the plaintiffs have the legal right to be in court and that the statutory provisions applicable to the Overseas Private Investment Corporation do not displace the requirements of the National Environmental Policy Act. The case will now continue through further legal proceedings.
Attachment 3 is additional background information on the lawsuit available from the website of the Friends of the Earth, one of the plaintiffs. Included with Attachment 3 is an affidavit from a member of Greenpeace and Friends of the Earth who resides in Raleigh, and states his interest in the issues raised by the lawsuit as they impact him and his property interests in North Carolina.
DISCUSSION
We believe that the petition presents a policy question for the Town Council to consider. Similar to what we stated to the Council in February 2003, in response to a petition from the Canary Coalition regarding the Clean Air Act, we do not have sufficient familiarity with the issues or expertise in environmental law and policy to be able to form an independent professional judgment regarding the merits of this litigation or to provide technical or legal support.
Because the issues of air pollution and global warming raised by this case affect municipalities and citizens nationwide, we believe the merits of this lawsuit should be considered by agencies that represent local governments from across the country. We believe that it would be appropriate for the issues raised by this lawsuit to be evaluated by the National League of Cities and the U.S. Conference of Mayors and their legal advocacy arms. We believe these organizations have the resources to evaluate and, if they deem it appropriate, offer their support to the current Plaintiffs. If either of these organizations determines that the suit merits their support, the Town could contribute to support those organizations’ offer.
We recommend that the Council adopt the attached resolution to request review of this case by the National League of Cities and the U.S. Conference of Mayors.
1. Petition (Agenda #3a(3), Sept. 12, 2005) (p. 4).
2. Order Denying Defendants’ Motion for Summary Judgment (p. 5).
3. Information from Friends of the Earth website on lawsuit (p. 18).