- The Washington Times - Wednesday, September 8, 2004

Eight state attorneys general, to vindicate their singular view of the public interest, have decided to supersede the federal government’s role and sue the nation’s five largest public utilities — none of which is in any of the eight states. The goal: to force a 3 percent annual reduction in carbon dioxide emissions over the coming decade.

Never mind that the AGs have neither the authority nor the responsibility to act in the broader national interest. And never mind that the power with that authority and responsibility, the U.S. government, has enacted federal statutes that pre-empt state laws.

Forty-one years ago, after vigorous debate and deliberation, Congress passed the Clean Air Act, which is enforced by the Environment Protection Agency. And today, Congress is considering another bill, introduced by Sens. John McCain, Arisona Republican, and Joseph Lieberman, Connecticut Democrat, that would cap CO2 emissions.

The public interest is best served when federal and state regulation is complementary, not duplicative or conflicting. Nonetheless, the attorneys general, led by New York Democrat Eliot Spitzer, intend to press forward with a trendy legal theory known as “public nuisance,” which holds defendants liable for any “unreasonable” interference with rights common to all members of a community. According to Mr. Spitzer, the theory is “well-established and unambiguous.” Tell that to courts across the nation that have been struggling with the public nuisance concept as applied to gun manufacturers and fast food distributors. Whenever “unreasonable” is part of the definition, there’s bound to be ambiguity as judges and juries try to cope with technically complex (and disputed) science, and disagreements over health risks and costs of abatement.

When the federal legislature is asked repeatedly to enact pollution regulations, the resultant regulations, or their rejection, control legal claims. It is not up to the courts to trump the determination of elected lawmakers with respect to an issue on which the views of those lawmakers have been expressed over and over again. If a determination is to be made that CO2 emissions must be reduced, the Congress must make that determination, not the courts. Mr. Spitzer’s apparent frustration at the legislature’s failure to endorse the laws he favors is not sufficient to engage the judiciary in an effort to put into effect a more restrictive set of rules.

To be sure, conservatives and libertarians ordinarily favor common law solutions, tailored to the unique problems of individual litigants, over legislative solutions based on an inflexible, command-and-control regime.

But the common law alternative is no longer appropriate once the federal government has dominated the legal landscape. Moreover, common law actions are typically private, not state-sponsored, litigation. Indeed the Audubon Society of New Hampshire and the Open Space Institute in New York filed a lawsuit similar to Mr. Spitzer’s on the same day that he filed.

Even if it were proper to circumvent the federal government, state-sponsored litigation is plainly redundant.

Here are the rules the AGs should follow before exposing defendants to double and triple jeopardy from public and private lawsuits under both federal and state laws:

(1) Do not litigate on behalf of private parties who, on their own, have unhindered access to the courts — either singly or as part of a class action.

(2) Pursue only those claims related to residents collectively or to a state’s overall economy, not particular parties that might be tempted to instigate special-interest litigation.

(3) Seek money damages, not conduct remedies. The problem is conduct remedies invariably affect out-of-state interests.

(4) Do not sue if a federal agency also is suing, unless there are state-specific injuries not addressed in the federal suit.

(5) Finally, avoid claims federal regulators have considered and rejected. The underlying problem is straightforward: Economic losses from excessive, overlapping regulation can cause immense damage to both producers and consumers.

That said, there is one principled ground on which Mr. Spitzer and his fellow AGs could legitimately intercede. They could argue — with support from constitutional scholar Randy E. Barnett, among others — that the Clean Air Act and other federal anti-pollution statutes are unconstitutional.

The Commerce Clause was originally meant to cover only interstate trade, not manufacture or agriculture.

Accordingly, regulating pollution, which stems from manufacture and agriculture, but not trade, is beyond the enumerated powers of Congress.

If so, pending a constitutional amendment authorizing federal environmental legislation, the AGs can proceed with their anti-pollution crusade. Don’t hold your breath waiting for Mr. Spitzer-and-friends to make that argument.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute ( www.cato.org). His latest book, “Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process,” will be published by Cato this fall.

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