From lawsuits to legislation, states, not feds, lead the fight against global warming

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Photo courtesy of www.supremecourts.us.gov
States are using the courts to take on global warming.


States using courts because some feel federal government isn’t doing enough

by NIKKI SCHWAB

To combat the threat of melting glaciers and shrinking coastlines, states are using courts to tackle the hot topic of global warming.

There are more than a dozen cases related to global warming in the federal and state courts, including Massachusetts v. EPA, heard by the Supreme Court in November.

These cases could decide important legal issues.

“If you are an owner of a ski resort and your season continues to be blown out because there is no cold weather, at what point can you sue the auto industry and the utility companies for something that is also putting you out of business?” said David Hunter, a law professor at American University.

Justin Pidot, a fellow at the Georgetown Environmental Law & Policy Institute, explained that states are using the courts because the federal government has not done enough.

“These cases have been filed in the shadow of Congress’s inability to enact legislation designed to confront global warming head on,” Pidot said.

Congress last made amendments to the Energy Policy Act in 2005, including giving tax credits to hybrid car owners, but has not touched the topic since.

In this absence, states have filed lawsuits that may decide if states or the federal government can regulate automobile emissions, and if industries can be held responsible for the harm they cause the world population by pumping greenhouse gases into the air.

Essentially, these cases could decide if coastal property holders, ski resort owners and asthma sufferers have the right to sue polluters.

In 1999, 12 states, the majority of which are coastal, requested that the Environmental Protection Agency regulate carbon dioxide from new cars under provisions of the Clean Air Act, but the EPA said it couldn’t regulate this greenhouse gas, and even if it could, it wouldn’t do so.

The states sued, and the case was heard in the Supreme Court on Nov. 29.

Deputy Solicitor General Gregory Garre, representing the EPA, said Congress never intended for the EPA to regulate carbon dioxide from motor vehicles. He also said the EPA can choose whether it regulates this greenhouse gas.

Garre argued that the scientific evidence for global warming was “uncertain” and the EPA was right in not regulating carbon dioxide.

In response, the states’ attorney James R. Milkey said even if the EPA was unsure about scientific evidence, it should still be doing something about climate change.

“The EPA has to explain why the uncertainty matters,” Milkey said. “They looked at what we don’t know instead of what we do know.”

The EPA also argued that regulating carbon dioxide from new cars wouldn’t make much of a difference.

Lisa Heinzerling, a Georgetown professor who helped formulate the Massachusetts’ argument, disagreed.

“That is a whopping amount of carbon that is emitted into the ambient air from sources we are concerned about,” Heinzerling said.

Automobile emissions account for 23 percent of carbon dioxide in the United States, and account for six percent worldwide.

Heinzerling said the states only wanted the EPA to re-examine the Clean Air Act, to see if it, after all, has the authority to regulate the six percent of carbon dioxide going into the atmosphere from American cars.

During the hour-long arguments, the nine justices spent 20 minutes on whether or not the states even had the right to sue. In order to sue someone, a plaintiff has to have been injured and that injury must have a remedy.

The whole case could hinge on that issue, Heinzerling said.

Massachusetts already loses 65 acres of coastline each year due to rising seas and subsiding land. Sea level is rising 11 inches per century in Boston and is expected to rise another 22 inches by 2100. Because of global warming, summer heat-related deaths could increase by 50 percent and oaks and pines could replace the maple-dominated forests, which would diminish the brilliant autumn foliage, according to a fact sheet provided by the Massachusetts Attorney General’s Office.

E. Donald Elliot, who served as general counsel for the EPA during the George H.W. Bush administration, said the states adequately demonstrated this link.

“I think they did an excellent job in trying to convince the court that there was a clear nexus between the EPA’s decision not to regulate and global warming becoming worse,” Elliot said at a panel discussion after the case.

If the states do have the right to sue in this case, it could mean that others who suffer from the negative effects of global warming could take legal action in the future.

While Supreme Court justices won’t decide on Massachusetts v. EPA until spring, in another case, the states are using a different principle to punish polluters.

They argue the case on a basic idea.

“You can’t use your property in a way that will harm another person’s property,” explained AU professor Hunter.

In Connecticut v. American Electric Power Company, Inc., six states sued the six power companies that contribute to 2.5 percent of the world’s carbon dioxide.

According to court documents, the states said that by contributing to global warming, the power companies are creating a public nuisance.

Essentially, they can’t use power plants to flood the states’ coastlines.

Michael Rubin, the assistant attorney general of Rhode Island, a party in the case, explained that by using common law, or the basic idea that one person cannot harm another’s property, his state can go after the polluters directly.

States can use common law because Congress hasn’t passed laws dealing with climate change. Rubin explained the states know Congress hasn’t passed laws or given anyone authority to regulate emissions because the government argues in Massachusetts v. EPA just that.

“How do we know that Congress hasn’t acted?” Rubin asked. “Because EPA tells us so.”

If the Supreme Court rules in favor of Massachusetts, however, that decision could be detrimental to this case. A win for Massachusetts would mean that the EPA might have the authority to regulate carbon dioxide.

“Our legal argument will suffer if Massachusetts wins even though our cause will be advanced, we believe,” Rubin said. “We’ve also joined Lisa Heinzerling’s petition in case she will win.”

Rather than filing lawsuits first, other states have attempted different approaches on global warming. For example, California filed a lawsuit to combat its problem of carbon dioxide emissions. The most populous state is the 12th largest producer of greenhouse gases in the world.

The state legislature, backed by Republican Governor Arnold Schwarzenegger, passed legislation in August that would cap car emissions at the 1990 level by 2020.

The automobile industry replied by suing the state.

“The federal government is the only one that is supposed to have fuel economy standards,” said Stuart Drake, an attorney who represents General Motors and Toyota.

In addition, Drake said the way to boost fuel economy is to decrease the weight of the vehicles, but then cars would be less safe in crashes.

Because cars are run on a carbon-based fuel, even if everyone drove a hybrid Toyota Prius, there wouldn’t be much difference in automobile emissions unless the industry avoided these fuels entirely, Drake said.

Auto companies are working alongside California to develop a fleet of vehicles that run from hydrogen fuel cells.

“While we are suing the state of California, we are also working with them,” Drake said.

And while the automobile industry is suing California, California is suing them back.

California, similar to the Connecticut case, filed a nuisance lawsuit against General Motors, Toyota, Ford, Honda, Chrysler and Nissan on Sept. 20, 2006, making them liable for past and future damages caused by the emissions that have “injured California, its environment, its economy and the health and well-being of its citizens,” according to the lawsuit.

With lawsuits flying back and forth, the question remains whether courts should be dealing with global warming at all.

“The global warming question poses complex public policy and science questions which may not best be decided by judges,” Pidot of Georgetown said.

Some claim it’s too political an issue to be dealt with in court, Rhode Island Attorney General Rubin explained.

Historically, the Supreme Court has not tackled cases if the justices thought the Constitution indicated that the issue was supposed to be handled by the President or Congress. This is called the political question doctrine.

“The political question argument is one I find very, very troubling because it really comes down to the sense that the Court thinks this is too politically hot to handle,” Rubin said.

He said this is the wrong interpretation.

“The political question doctrine is not that this is too politically controversial, the Supreme Court deals with politically controversial things all the time such as gay marriage, Brown v. the Board of Education, Roe v. Wade,” he said.

Rubin said a “political question” means the issue is designated by the Constitution to be addressed by either Congress or the President, not that an issue is too big or controversial to be decided by the courts.

Also, some experts argue that global warming is too big, because it is a global issue, and states or the federal government regulating greenhouse gases would diminish the United States’ bargaining power in international debate.

“You have to put something on the table,” General Motors’ attorney Drake said. “I guess our position is that our enemy gets to decide which way to go.”

Professor Hunter of AU disagreed with the international argument. He said the courts are a “completely appropriate” setting for the global warming debate.

“That’s what the courts do–they adjudicate people who have suffered injury,” Hunter said.

However, depending on how the courts rule on these cases, those harmed from global warming may or may not have the legal right to sue those emitting greenhouse gases into the air. Also, the courts may say the EPA, Congress or the states can regulate carbon dioxide.

But until the courts make these decisions, those affected by problems created by global warming will be unsure of their legal rights.

Read more about global warming at: Emissions in China, other developing countries, soon to surpass U.S.
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