Legal strategies for battling climate change
When President Bush delivered his much-hyped climate policy speech from the Rose Garden last April (see here), he voiced an interesting concern. He’s worried that the courts will do what the other two branches of government have failed to do: take meaningful action to curb the country’s carbon emissions.
"We face a growing problem here at home," the president said. "Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate change."
"Decisions with such far-reaching impact should not be left to unelected regulators and judges," he continued. "Such decisions should be opened — debated openly; such decisions should be made by the elected representatives of the people they affect. The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution."
The White House promised that Bush’s Rose Garden remarks would be important and it was correct: The president’s call for open debate and an honest assessment of climate action was a major policy shift. His complaint about unelected judges making decisions was specious, however. The elected members of past Congresses and Bush’s predecessors signed the 30-year-old laws on which some of the current court decisions are based. Old laws are being applied to global warming because the current Congress and White House have failed to pass new ones.
For example, the U.S. Supreme Court decided on April 2, 2007 [PDF] that the Environmental Protection Agency has the authority to regulate carbon dioxide under the Clean Air Act, an authority the Administration still has not used.
The same day, the high court upheld the original intent of the "new source review" rule, which requires that existing power plants, oil refineries and factories upgrade their pollution control equipment when they undergo an overhaul. Late in 2002, the Administration announced its intention to weaken the rule — an action the Natural Resources Defense Council called "the most dramatic rollback of our clean air laws since Congress enacted them more than 30 years ago."
Legal action also is playing a major role in the cancellation or delay of new coal plants. At the beginning of 2007, the U.S. Department of Energy counted 151 new conventional coal-fired power plants in the construction pipeline. By April of this year, nearly 50 plants had been contested in the courts and 59 had been refused licenses by state governments or had been "quietly abandoned", according to Lester Brown.
"What began as a few local ripples of resistance to coal-fired power plants is quickly evolving into a national tidal wave of opposition from environmental, health, farm, and community organizations as well as leading climate scientists and state governments," Brown and co-author Jonathan Dorn report in an article for the Earth Policy Institute. "Growing concern over pending legislation to regulate carbon emissions is creating uncertainty in financial markets. Leading financial groups are now downgrading coal stocks and requiring utilities seeking funding for coal plants to include a cost for carbon emissions when proving economic viability."
This may be only the beginning of a court-assisted assault on global warming. Atlantic Monthly reports that the legal strategy employed against the tobacco industry now is being leveled at Big Oil. Two attorneys who fought on opposite sides of the tobacco wars in the 1990s have teamed up to represent the Eskimo village of Kivalina. Located on the west coast of Alaska, Kivalina is being destroyed by sink holes and erosion, and is being pummeled by winter storms that the U.S. Army Corps of Engineers has attributed to climate change. The Corps has concluded that the village of 400 may be uninhabitable in a decade.
In February, attorneys Steve Susman and Steve Berman suited 24 oil, coal and electric companies on grounds that their emissions are partly responsible for Kivalina’s destruction. As Atlantic reports:
As scientific evidence accumulates on the destructive impact of carbon-dioxide emissions, a handful of lawyers are beginning to bring suits against the major contributors to climate change. Their arguments, so far, have not been well received; the courts have been understandably reluctant to hold a specific group of defendants responsible for a problem for which everyone on Earth bears some responsibility. Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels–something best handled by legislatures.
But in an interesting sidestep to that issue, Berman and Susman are accusing eight of the 24 companies — American Electric Power, BP America, Chevron, Conoco-Phillips, Duke Energy, ExxonMobil, Peabody Energy and Southern Company — of conspiracy to cover up the threat of anthropogenic global warming. The lawyers allege that like the tobacco industry, the energy companies have hired think tanks in "bad faith efforts to prevent the enactment of public measures that might have slowed the warming."
"You’re not asking the court to evaluate the reasonableness of the conduct," Berman says. "You’re asking a court to evaluate if somebody conspired to lie."
Other legal experts are contemplating new grounds for combating global warming. For example, Prof. Mary Christina Wood of the University of Oregon School of Law suggests litigation (PDF) to establish that the atmosphere is a public trust, and public officials have a fiduciary responsibility to protect it for this and future generations.
I suspect that the Bush Administration’s worry that climate policy is slipping out of its control is behind Interior Secretary Dick Kempthorne’s administrative tap dance last week when he finally listed the polar bear as an endangered species.
Kempthorne said the Endangered Species Act (ESA) "compelled" him to list the polar bear, but he issued "administrative guidance" and a rule to discourage arguments that protecting the polar bear requires that we reduce greenhouse gas emissions from automobiles, power plants and other sources.
"The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability," Kempthorne said.
Kempthorne’s "guidance" was akin to President Bush’s questionable use of signing statements to reinterpret legislation to the administration’s liking, even while signing it. Environmental organizations immediately announced they would go to court to challenge Kempthorne’s rule.
Kempthorne’s advocacy of "political accountability" was ironic, particularly because the Interior Department used its long delay on the polar bear decision to issue new leases for oil and gas industries to drill in the animal’s habitat. It’s ironic, too, to hear President Bush extol the importance of "open debate" and an "honest assessment" of climate policy options, after seven years of placing oil lobbyists in government jobs so they can write the nation’s energy policies; authorizing political hacks to censure federal science; and taking so little meaningful action that the mere mention of the climate seemed like a major breakthrough.
I expect we’ll see more attempts by the Administration and by climate
skeptics delayers on the Hill to dull the influence of the courts on the climate issue. We’ll probably see more attempts, too, to give the fossil energy industries every possible advantage this year, including more leases, administrative rulings and resistance to effective carbon pricing. Anything else would simply be out of character for the Bush White House.