DR: Let’s talk legal issues. I can see the analogy between cigarettes causing lung cancer and burning oil causing asthma. You have a reasonably distinct causal chain. You can reasonably point to knowledge on the part of the oil companies. But when it comes to global warming, you have a long and tenuous causal chain, and ambiguous knowledge on the part of the bad actors. It’s a kind of second-order externality. Do you think these global warming suits against, say, car companies are winnable? And if they are, don’t you then open up half the industries in the country to similar lawsuits?

TT: You might. That might be the way you ultimately get carbon taxes. If these industries are being sued, just like the tobacco companies they may end up settling. They might agree to raise the price of their product and pay something into a treasury to deal with climate change. That would get passed on to consumers, and it would essentially be a carbon tax. That’s the reason the cigarette companies settled — they agreed with plaintiffs that they could pass on the cost to consumers, which would obviously help reduce the number of smokers.


I do think they’re winnable. We filed the first suit in California a few months ago. The attorney general sued the six major automakers for the cost to California of dealing with climate change. Not the loss of water or erosion or other costs, but the cost of creating a bureaucracy for AB 32 and all the other out-of-pocket expenses.

In this instance, he used common-law nuisance. It’s like a guy opens up a restaurant next to your home, and he’s got a barbeque. Every night he stokes up that barbeque, and soot comes in your window. He may be operating with a permit. You’re both there legally, but what he’s doing is a nuisance and you have a right to abate that nuisance. You can take him to court and say, look, you’ve got to either put a chimney on this thing or compensate me for the exclusion of the use and enjoyment of my home.

Same thing with the attorney general in this instance. He’s not arguing whether or not they knew it, whether or not they’re selling cars that are legal, or whether or not they took away our alternatives. (These are the things I argue in my book.) He’s just saying straight up, “this is a nuisance. You are dumping soot from your barbeque into everybody else’s atmosphere, which is causing global warming. Pay to play.”

Especially after we try to do this in a more polite way: If you’re Bob’s Barbeque and I’m your neighbor and I come to you and say, “Hey Bob, I would really appreciate it if you would abate that nuisance,” and you say, “go pound sand,” well, what am I left with except the courts? The polite way for the state of California to do this was to go to car companies with AB1493 and say, “we’re going to use a thoughtful, lawful process with public comment, including yours.” We did, it was passed and signed into law. These guys are telling us to go pound sand by taking us to court and trying to get out from under it. OK, say they’re successful. Then they’re continuing with their nuisance, and I can now go to court and try to abate in another manner.

DR: You have to show tangible harm from global warming, right? All the legal strategies hinge on that.

TT: We have 1,300 pages of climate report. The vast majority of our Climate Action Report consists of appendices that go into excruciating detail on the state of climate science, and the impacts to California — to its water supply, its coastal erosion, its crops, a whole host of things. You can argue a whole range on when these problems will occur. But our department of water resources, for example, has a hydrograph showing that there’s a direct correlation between the increase of CO2 in the atmosphere and the shrinking of the snowpack in the Sierra Nevadas.

There are lots of other fairly good correlations. Even if later science shows all that to be wrong — let’s say Michael Crichton is right, and it’s all just a scare tactic — the fact is, as policy makers, we can’t afford, with all this scientific evidence laying in front of us, to assume that all of these scientists are wrong. It’s our job as policy makers to prepare to deal with this threat to our population. In doing so, we’re spending tens of millions of dollars to analyze the problem, set up registries, set up trading schemes to pass AB 32, add our budget this coming year, figure out how to otherwise abate this terrible problem. It’s a problem that the best science tells us we caused — so therefore, pay to play.

DR: How does a political party or politician argue in favor of activist judges intervening and debilitating major industries? How do you spin that into a winning campaign?

TT: Mike Moore was the attorney general of Mississippi in the early 1990s and brought the first case against tobacco companies. Everyone said he was crazy. And after he got past the motion to dismiss, the tobacco companies sat down and said, “we’re scared shitless, what do you want?” Nine other states jumped in and said, “you know what, Mike, you’re not so crazy.” Within a couple of months, the first ten-state, $350 million settlement was made. Since then, $2 trillion has been assigned and is being implemented. Everyone is crazy when they’re starting out.

DR: But cigarettes involve an already-demonized industry, and only raised costs for an already demonized population, i.e., smokers. Here we’re talking about a lynchpin in certain state economies, not to mention everybody who drives. You’re penalizing almost everybody in the country.

TT: We’re being penalized now. We’re spending $10 for every gallon of gasoline, and that’s a conservative estimate. All I’m saying is, let’s take a fraction of that. Tobacco prices went up something like $2 a pack after the first settlement, because there are so few smokers and there was so much money that needed to be coughed up, pardon the pun. Well, there are so many more of us that we could add a few pennies to every gallon of gas and we’d never notice it.

In California, in the last three years since we invaded Iraq, the price of gasoline has gone from a buck and quarter to $4, back down to $3, up to three and a half, down to now it’s about $2.75 where I live. And nobody blinked. What’s another 10 cents, 20 cents, 50 cents on a gallon spread among all of these users?

We’re not blaming them. We’re all victims of the conspiracies and the lies and the shenanigans. We’re all victims of what comes out of those tailpipes and those smoke stacks at the refineries. So why not be part of the solution? Hold those companies accountable.

What if ExxonMobil didn’t make $10 billion in one quarter? What if they only made $5 billion? What if that other $5 billion went in to the treasury to help more rapidly deal with alternative energy, and maybe pay for some healthcare costs. That doesn’t come out of anyone’s pocket except for Exxon. That’s found money.

They didn’t spend any more to produce their product and sell it to us. They got lucky. There’s nothing wrong with luck. That’s the great American commercial way. But there’s lots of ways to take that money without necessarily burdening individual consumers.

Just like with smokers, maybe that extra 5, 10, 20 cents a gallon will cause us all to conserve a little more, which solves part of the problem right there, makes us all part of the solution. Instead of feeling bad about that, let us feel good about that, that we’re putting a little bit in every time we go to the gas pump toward the solution, instead of being fooled into thinking we’re only paying $2.75 a gallon at the pump when in fact we’re paying another 5, 6, 7, 8 dollars a gallon in lots of other things, things that can’t be quantified, like lives. Read about what we’re doing in Ecuador, what we’re doing in Nigeria. Those things can’t be quantified. We can all contribute to those solutions.