Legal Hot Air
February 6, 2007 - Wall Street Journal

The U.N.'s latest global warming report is being spun as a wake-up call. But whether or not you agree on the need for urgent action, it ought to be obvious that the absolute last branch of government that should set climate policy is the courts. As usual, California Attorney General Jerry Brown has his own ideas.

At issue is a federal lawsuit filed last September by Mr. Brown's predecessor, Bill Lockyer, asking for billions of dollars worth of damages to be levied against six automakers -- General Motors, Toyota, Ford, Honda, Nissan and Chrysler -- because their products allegedly create a common-law "nuisance" by contributing to global warming.

At the time most observers, Mr. Brown included, appeared to regard the move as an election-year stunt. But now that he's in office, Mr. Brown has decided to pursue the case, which he says rests on "sound legal doctrine." Because "no federal statute speaks directly to the particular problem of global warming," says California's recent response to the carmakers' motion for dismissal, ". . . federal common law applies."

Uh-huh. We don't want to give Governor Brown any ideas, but if making a legal product that might contribute to global warming is an actionable offense, why stop with the automakers? How about the publisher of the Los Angeles Times, which deprives the world of a "carbon sink" (aka a tree) to create its daily product? Or how about cattle ranchers, whose flatulent herds emit massive amounts of methane before they become steaks on your dinner table? Methane is a far more potent greenhouse gas than CO2.

In short, there's scarcely any economic activity imaginable that doesn't somehow affect the balance of greenhouse gases, which is why a "nuisance" complaint against any single industry doesn't make sense. It's also why the judiciary has so far wisely refused to get drawn into this kind of blame game. A New York federal district court has already rejected an attempt by Mr. Lockyer and others to hold the utility industry responsible for global warming, saying it would be wrong "to impose by judicial fiat" CO2 regulations that "Congress and the Executive" have considered and declined to impose.

In any case, as global warming alarmists never tire of reminding us, any serious attempt to control greenhouse gas levels would have to be an international one. That means the primary Constitutional responsibility for the issue lies with the President, who negotiates treaties. Congress, which regulates automobile mileage and other tailpipe emissions, is also free to pass unilateral CO2 caps if it wishes. That it has so far decided not to do so may be a source of angst to some people. But it's hardly an excuse for an end-run by an ambitious state attorney general around the country's system of environmental regulation.

Given the existence of the Clean Air Act and many other environmental rules, it's preposterous for California to invoke the common law as if Congress had never considered the issue. Or as the Environmental Protection Agency has written by way of explaining why we'd need a national approach to the alleged problem: "[I]t is hard to imagine any issue in the environmental arena having greater 'economic and political significance' than regulation of activities that might lead to global climate change."

If environmentalists want the U.S. political system to do something about CO2 emissions, a good place to start would be convincing a majority of Americans that they are serious people with serious concerns. California's attempt to single out automakers -- which gives a whole new meaning to the term "junk lawsuit" -- is not helping their case.