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The Smoking Gun

exhaustfumes_web.jpg Ted Rose is journalist-turned-environmental entrepreneur currently serving as the director of business development for Renewable Choice Energy, the national wind power provider. His reportage and essays have appeared everywhere from Wired to Slate to Salon to The New York Times. His radio essays have aired on NPR’s All Things Considered.

The $64,000 question in climate change is how to get the United States to start minding its greenhouse gases. While Europe has developed its cap-and-trade regulator scheme over the nine long years since the Kyoto Protocol was signed, the world’s biggest carbon polluter has pursued only modest voluntary efforts, like the Chicago Climate Exchange. Short of a shift of perspective-- or more likely personnel--in the White House, is there anything that can be done to speed change here in the US?

Last month, I was reminded a particularly American solution to this type of policy intransigence: the lawsuit.

The state of California filed suit against the six largest automobile manufacturers in the country, seeking damages for their role in increasing global warming. The suit marked the first attempt to hold the automakers responsible for the greenhouse gas emissions. The Los Angeles Times and other media all but dismissed the action as election posturing. California’s attorney general Bill Lockyer has under two months to go in a campaign for state treasurer.

But the media cynicism misses the point. The question isn’t whether California’s lawsuit is political grandstanding, but whether it might help change things. For evidence that it might, you need look no further than the tobacco industry and the policy debate over smoking.

For decades, smoking opponents were frustrated by a potent Big Tobacco and a slow-responding government. The arrangement was obvious: Big Tobacco funneled money into the political parties and successfully discouraged most politicians from sniffing around its dirty laundry. The tobacco fortress collapsed in the mid-1990s, but it’s easy to forget that the industry’s luck never ran out in Congress, it happened the courts. It was lawsuits—not Congressional hearings or Presidential inquiries—that revealed Big Tobacco’s cynical views about cigarette addiction.

In fact, it was another politically ambitious state attorney general along with a plaintiff’s lawyer who found Jeffrey Wigand, the tobacco exec insider who first spilled the beans. Wigand’s words not only produced a nifty Russell Crowe movie, they fueled a series of jury verdicts that finally brought Big Tobacco to the negotiating table. In the end, the tobacco companies coughed up $368 billion that was used to fund a wide array of public health programs.

Is it really so outlandish to imagine the same thing could happen with global warming emitters? Yes, in many respects. After all, the connection between tobacco and nicotine and cancer was solid. California’s attorney general can bluster about how one third of his state’s emissions come from automobiles, but that’s about it. He can’t blame Toyota and Ford for the pollution emerging from the coal plants in China coming on-line at a rate of one every two weeks. He can’t accuse the companies of circumventing a carbon cap system that doesn’t exist.

The legal basis for the suit is that that the companies’ actions constitute a nuisance which is defined as anything injurious to health. If the courts accept this legal argument, it could mean anything unhealthy could be branded as illegal. I doubt America is ready to end fast food through a class action lawsuit.

That said, the automakers certainly haven’t made it easy for themselves. You don’t have to be a greenie these days to look at the Era of the SUV a bit suspiciously. Is it really that hard to imagine that there’s a memo tucked away somewhere in Detroit arguing the industry should promote gas guzzlers just as long as they can, not just for their fat margins but because their excessive emissions will help prime the market for efficient cars in the future? It’s hard not to wonder.

This lawsuit may still become a rock that gathers moss. California and nine other states filed a similar suit a couple years back against five power companies. That lawsuit was thrown out by a district court judge who viewed the suit as backdoor regulation--which is of course what many seminal lawsuits turn out to be. That suit is now on appeal in the Second Circuit Court of Appeals

Perhaps the most intriguing lawsuit this fall doesn’t target the polluters but the regulators themselves. California is also party to the lawsuit challenging a 2004 Environmental Protection Agency order that concludes the government does not have to regulate carbon dioxide emissions. That case has been accepted for review by the Supreme Court and arguments will be heard this term.

I suppose you could look to a John Roberts court to usher in the era of greenhouse gas responsibility. I’d put my money on a politically ambitious attorney general or a plaintiff’s lawyer any day.

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I'm not so pessimistic about it...I think that the situation will change for the better some day. I've been recently in Sydney and noticed that they control these gases.

Posted by: Jane on 4 Oct 06



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