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Chilling effect

Environment | A federal ruling in California could slow climate-change litigation but can't stop it

Issue: "Preach it," Oct. 6, 2007

Having once campaigned to the left of such Democratic presidential candidates as Jimmy Carter, Ted Kennedy, and Bill Clinton, California attorney general Jerry Brown provoked little surprise last year when he carried out the plan of his predecessor to sue the world's six largest automakers for causing global warming. The surprise came Sept. 17 when a Clinton-appointed federal judge in San Francisco threw Brown's case out of court.

The so-called "big six" of Chrysler, Ford, General Motors, and the North American subsidiaries of Honda, Nissan, and Toyota escaped the expense and negative publicity of a trial meant to impugn the green credentials of their product lines. Brown's case charged that the automakers' vehicles release a combined 289 million tons of CO2 in the United States each year, damaging California's coastline and water supply.

In a 24-page ruling, U.S. District Judge Martin Jenkins wrote, "The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth's atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe."

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That outright dismissal undermines the hope of many environmentalists to impose greenhouse-gas caps through the courts. Climate-change litigation has spiked considerably in recent years and received a boost this past April when the Supreme Court ruled that the Environmental Protection Agency (EPA) has the authority and responsibility to regulate CO2 emissions from automobiles.

That high-court decision constituted an affront to the Bush administration, which opposes restricting automobiles' CO2 emissions due to potential economic ramifications. In contrast, Jenkins cited those very economic concerns, along with foreign policy considerations, in defending the administration's prerogative to set national environmental policy-specifically, to refuse ratification or enforcement of the international Kyoto Protocol without the judiciary branch interfering.

"President George W. Bush opposes the protocol because it exempts developing nations who are major emitters, fails to address two major pollutants, and would have a negative economic impact on the United States," Jenkins wrote. "[T]he Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government."

Such judicial restraint sets a precedent that could chill climate-change lawsuits throughout the country-depending on how widely federal judges apply the ruling. Jenkins uniformly shut down the notion of suing particular companies or organizations for their contributions to global warming. But other judges may still entertain litigation that seeks to broaden the scope of existing clean air laws and punish the government for not enforcing them.

Indeed, Brown previously succeeded in obtaining a court order forcing San Bernadino County to implement a carbon-emissions reduction scheme. And the green-committed attorney general has used threats of legal action to strong-arm large companies into lowering their carbon footprints.

With support from 11 other states, Brown now stands ready to sue the EPA for not granting a federal waiver for California to impose caps independently on the greenhouse-gas emissions of cars and light-duty trucks. Such a waiver would effectively permit a sort of backdoor Kyoto Protocol, wherein state policies on climate change could stand in direct conflict with the Bush administration's position.

However much Brown's overreaching lawsuit against the "big six" may have hurt the movement of climate-change litigation, the one-time California governor has no intention of standing down from green lawsuits. With plans to reclaim the state's governorship in 2008, he has made global warming crusades the centerpiece of his agenda.

What's more, a federal judge in Vermont recently injected more life into the climate-change litigation movement than Jenkins could suck from it. On Sept. 12, U.S. District Court Judge William Sessions III rejected a challenge from automakers to Vermont's vehicle-emissions standards. The ruling struck down objections to state environmental policies that conflict with federal policy, inspiring a sudden swell of federalism in green quarters across the nation.

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