Local government on offense

Will Courts Create Federal Policy on Global Warming?

By Nancy Jacques, 6-08-06

Better than John Grisham’s courtroom fiction or episodes of Law and Order, real- life legal contests being waged over global warming, intended to make polluters accountable, are quietly wending their ways through American courts. They’re worth watching.

Maybe this reads like a yawn, and maybe these legal contests seem like arcane and tortuous routes to recognizing the obvious, but decisions in these cases could force Washington to do more than leave emissions standards and the effects of global warming to the oxymoronic “personal conscience” of industry.
Ten states have just joined with California to sue the Bush administration over its virtually non-existent SUV mileage standards. It’s the first suit specifically challenging Washington’s failure to address anything but the myopic interests of automakers and oil companies. And ongoing is North Carolina’s suit against the Tennessee Valley Authority for failure to reduce pollution, and challenges being made jointly by eight eastern states against TVA and five other major utilities to make them clean up their acts. The goals of these suits include having courts recognize, under public nuisance laws, carbon dioxide emissions that contribute to global warming.

Suits have been filed against the U.S. Export-Import Bank and the Overseas Private Investment Corporation. With intentions to sue, Arctic Intuits, last December, brought before the Inter-American Commission on Human Rights evidence of habitat and lifestyle losses due to US global warming emissions. The Island of Samoa, three major cities and twelve states have petitioned the U.S. Supreme Court to review a ruling made last year by the U.S. Court of Appeals stipulating the US Environmental Protection Agency is not required to regulate greenhouse gas emissions from motor vehicles as pollutants.

Here in the West, some Colorado municipalities have joined the fight. Telluride, Boulder, Denver and Aspen have signed on to the Mayor’s Climate Protection Agreement, joining 234 other communities across the nation in curbing global warming.

Meanwhile, my own community of Durango keeps stalling. Why? Maybe they’ve bought Washington’s line believing a local emissions inventory and aggressive reduction of our community’s contribution to a worldwide problem might hurt the economy—never mind the sick logic here disregarding what global warming is going to do to economies.

Maybe they’ve lost sight of money to be made by supporting energy innovation and new sustainable local industries that can help diversify mountain economies. Or maybe it’s just too uncomfortable for them to read Less Snow, Less Water: Climate Disruption in the West, a study released by the Rocky Mountain Climate Organization, last year, projecting more heat, less snowfall, smaller snowpacks, earlier snowmelt and more wildfires for Colorado.

I can’t read leaders’ minds, but I can wonder: Are they thinking global warming is someone else’s problem?

Durango’s leaders may be stellar examples of why local responses to global warming are important but they’re not enough. Aspen does an inventory to curb emissions. Durango does not. Albuquerque signs on to climate protection. Santa Fe skips out. Las Vegas signs, but not Reno, nor any city in Arizona.

Still, even if every town in the West, or the country, did something, this is still akin to leaving the management of nuclear weapons stores to voluntary action by local communities. Feel comfortable?

We need strong federal action to curb global warming emissions, in line with the aggressive mandated moves being made throughout the world -- which, not-so-incidentally are proving profitable. Tongues pompously wagging with myths that “free markets” will create the move toward energy-efficiency conveniently forget the generous socialistic-type US subsidies flowing not toward innovation, but directly to the entrenched and favored funders of Washington politics. So, it’s back to the courts.

Legal pundits and their observers, like Chris Mooney, senior correspondent of American Prospect and writer for Jurisprudence, are speculating that plaintiffs — the ones being harmed — have strong cases. In the past, legal contests challenging polluters have been lost because the defense challenged plaintiffs’ standing in court. In laymen’s terms, an accuser must prove the accused has caused harm. Damage can’t be hypothetical.

With global warming affecting everyone, with polluters found from our driveways to smokestacks, defense has successfully been able to argue, in the past, that evidence against a specific polluter can’t be conclusive, and, anyway, pointing fingers and calling for amends from some alleged villain has negligible impact on warming consequences when viewed globally. Prosecutorial tactics have changed in response to this logic.

States are partnering up to sue a collective of conspicuous polluters. This provides strong regional proof of damages. You can point to any number of expensive sins: beach erosion; salinization of fresh water supplies because of rising sea levels; lung disease; reduced snow pack; failed crops.

Utilities being accused, including American Electric Power Service Corporation and Excel Energy, produce some 650 million tons of carbon dioxide emissions annually: one-quarter of the nation’s utilities emissions, ten percent of the nation’s total output of global warming pollutants. Hardly negligible nationally or globally; the U.S. remains the grossest polluter, producing 25 percent of the world’s warming emissions.

There is hope. Despite worries over President Bush’s judicial appointments, if a mid-March U.S. Court of Appeals ruling is any indication, interpreting the law doesn’t always follow a partisan path. This court, including Bush’s recent appointee, Judge Janice Rogers Brown, unanimously ruled against Bush’s attempt to reinterpret the Clean Air Act to allow power plants, refineries and factories to ignore installing new pollution controls.

If plaintiffs win it won’t be the first time in our history that courts force Washington policy and the social behavior of this nation to change.

Like this story? Get more! Sign up for our free newsletters.