- The Washington Times - Monday, October 9, 2006

Elected state attorneys general should be disparaged for contriving preposterous lawsuits to advance their vaulting political ambitions. The global warming litigating lark of California’s Bill Lockyer is symptomatic.

The state attorney general craves higher office. He knows global warming awakens popular alarm. If he can be perceived to be slaying global warming dragons, voters will rally to his political banner. Thus was born the clownish case of People of the State of California, ex rel. Bill Lockyer, Attorney General v. General Motors Corp., et al., filed in the U.S. District Court for the Northern District of California (Sept. 20. 2006).

Mr. Lockyer seeks to saddle six major auto manufacturers with responsibility for the staggering evils, past and projected, with imputed links to global warming: reduced snow pack, coastal and beach erosion, ozone pollution, seawater intrusion into Sacramento Bay-Delta drinking water supplies, and, adverse impacts on wildlife, including endangered species and fish, and wildfire risks.

Defendants General Motors, Ford, Chrysler, Nissan, Toyota, and Honda are not accused of violating any federal or state statute enacted by representatives of the people. Instead, the attorney general asks a federal judge with no direction from either Congress or the president to ordain a rule mulcting auto companies of colossal sums for manufacturing and selling vehicles consistent with the law. The incredibly complex network of questions and interests implicated in the causes, consequences, and cure for global warming should be sorted out in a lawsuit. Even Charles Dickens’ “Bleak House” did not conceive of such a litigating spectacle.

The first trial issue would be the existence or extent of global warming. An endless array of experts would provide conflicting testimony. Volumes have been written about the question. No scientific consensus has emerged as is customary for making nontrivial public policies that could cripple industrial production and dislocate the lives of hundreds of millions as was done, for example, regarding the dangers of cigarettes.

What should be done about global warming through precautionary or remedial measures has divided legislators and policy experts around the globe for decades. The Kyoto Protocol is illustrative. Nations and states have adopted varied approaches with no clear success stories. Yet lay jurors unschooled in the dumbfounding equations supporting or contradicting global warming, according to Mr. Lockyer, should decide the question based on a preponderance of the evidence. If the question is decided in the affirmative, the jurors would concoct a scheme for monetarily punishing greenhouse gas emissions from countless contributing sources spanning the globe.

Mr. Lockyer’s theory of global warming liability justifies a lawsuit of everyone against everyone. He reasons that greenhouse gas emissions contribute to global warming; that the evil causes predictable harm; and, that every contributor should thus be jointly and severally liable for global warming damage.

Mr. Lockyer confined his suit to six auto manufacturers rather than lash out at the planet to give his litigation a politically attractive coloration. According to the complaint, the defendants’ vehicles account for but a fraction of annual carbon dioxide emissions in the United States and California.

Why didn’t he sue every source of carbon dioxide emissions, including coal-fired power plants? Why didn’t he sue vehicle drivers and electricity users? They know their driving and electricity use will create greenhouse gases, and thus lie at the core of Mr. Lockyer’s theory of liability. If he were principled rather than expedient, he would have named himself, the presiding federal judge, and President Bush as defendants for knowingly and intentionally contributing to global warming every time they drive a car or turn on a light.

Indeed, a principled attorney general would have sued every producer or user in the world of a good or service that emits a greenhouse gas, a class far in excess of 1 billion, thus making the lawsuit the most stupendous in the history of the Milky Way. To borrow from Walt Kelly’s Pogo, “We have met the enemy, and he is us.”

General Motors and its sister defendants can be expected to file cross-claims against these billion-plus businesses and consumers seeking contribution for any damages awarded for global warming injuries. The logistical problems of accommodating the additional parties would seem insurmountable. Another Google would need invention to organize and to retrieve the electronic filings. All participants would be dead before each of the billion or more defendants had an opportunity to speak in violation, contradicting the once-venerated canon that the law should make concessions to the shortness of life.

Mr. Lockyer’s complaint also invites every inhabitant of the globe to sue. It seeks a declaratory judgment for “such future monetary expenses and damages as may be incurred” in connection with global warming.

In other words, every person fearful that global warming at some prospective date might inflict harm should be permitted to sue now to obtain damages for speculative harm than may never eventuate.

Shouldn’t the California State Bar Association consider disciplining Mr. Lockyer for employing frivolous litigation to further his personal ambitions? Doesn’t his conflation of law and politics in the global warming suit do a disservice to both?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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