California Republic.org, October 18, 2007

Finally, after a series of problematic rulings, the courts offer some sanity on greenhouse gas regulation. In September, a federal district court judge dismissed an emissions lawsuit filed by California’s attorney general against General Motors, Ford, Toyota, Chrysler LLC, Honda, and Nissan. 

The lawsuit maintained that the six automakers were responsible for 30 percent of tailpipe carbon dioxide (CO2 ) emissions in California, and that these emissions are causing warmer temperatures, beach erosion, and water-supply problems from drought and a shrinking snowpack. This premise is hopelessly flawed, according to U.S. District Judge Martin J. Jenkins, who dismissed the case.

“The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth's atmosphere," he wrote, "or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe.”

Judge Jenkins correctly observed several problems with the California lawsuit, first filed by then-attorney general Bill Lockyer and continued by current incumbent Jerry Brown, a former governor of California and candidate for president in 1980.

First, there is no legitimate way to determine what level of CO2 emissions can be considered a dangerous amount.  Second, because of the number of point-based and diffuse sources, both on the part of industries and individuals, locally, regionally, nationally, and globally, there is no reasonable way to determine how much responsibility lies with each of the parties involved. On top of all that, it would be nearly, if not completely, impossible to determine fairly and accurately what damage is incurred from each source of emissions.

This ruling arrives as a breath of fresh air in light of several other recent court decisions. In April, the U.S. Supreme Court ruled that the Environmental Protection Agency is empowered under the Clean Air Act to regulate emissions of carbon dioxide and other greenhouse gases from cars and trucks.  This is despite the reality that carbon dioxide is not a substance that is a direct or quantifiable danger to public health and welfare, the very standard on which the Clean Air Act is based.

Earlier in September, a District Court judge in Vermont found that states have the legal right to impose tailpipe emissions standards to reduce greenhouse gases linked to global warming. In that ruling, the judge wrote, “History suggests that the ingenuity of the industry, once put in gear, responds admirably to most technological challenges.”

This is largely true — industrial and technological innovation has repeatedly overcome a number of challenges.  However, if these challenges are to be overcome, they need to first be identified through legitimate scientific and policy-setting processes, not through a series of piecemeal lawsuits.

A better approach would be a broad-based public discussion of the need to mitigate climate change, and the best approaches for doing so. Such a discussion, however, should be based on science, known outcomes, economic and technological feasibility, and unbiased assessments of public welfare concerns. Too often, individuals such as California's attorney general use their political agendas to circumvent this discussion. Judge Jenkins is to be commended for refusing to play along and his ruling sets an important legal precedent.

This article was originally published in Pacific Research Institute's Environmental Notes.