Op-Ed for the Wall Street Journal
By California Attorney General Edmund G. Brown Jr.
If the Big Six Want to Talk About CO2 Emissions, California Will Listen
Wall Street Journal (Eastern edition). New York, N.Y.: Feb 12, 2007. p. B.6
The world’s six largest automakers are crying foul about a recent case filed by California seeking redress for CO2 induced damage. They argue that courts are not the proper place for this kind of “global” issue. This sudden aversion to litigation is perplexing, given that these same companies have sued states repeatedly, in numerous jurisdictions, insisting that the courts must overturn all state laws dealing with greenhouse gas emissions. The companies hew to this path of complete resistance despite the fact that the vast majority of climate scientists believe that the world is facing a potential catastrophe.
Let me be clear: I also would prefer to reach solutions outside of the courthouse. Litigation can be expensive and time consuming. That is why I asked for a meeting with each of the CEOs of the car companies to find practical solutions to global warming. If they want to sideline the lawyers and talk about solutions, I am all for it. But please, don’t call California's lawsuit "frivolous" while maintaining so many lawsuits of your own.
California’s public nuisance case is well grounded in precedent. For over 100 years, the U.S. Supreme Court has allowed states to take legal action to prevent the destruction of their air and natural resources. In a case called Georgia v. Tennessee Copper, Justice Oliver Wendell Holmes—not a man known for indulging frivolous claims—wrote, “It is a fair and reasonable demand on the part of a sovereign [state] that the air over its territory should not be polluted on a great scale…or threatened by the act of persons beyond its control. . . .” More recently, the Supreme Court declared, “Air pollution is, of course, one of the most notorious types of public nuisance in modern experience.”
The Big 6 Automakers generate 20% of all of the human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California. Yet, they oppose any federal action to curtail greenhouse gases. To date, their intense lobbying has been very successful: Congress has not improved fuel efficiency standards in 15 years, President Bush steadfastly refuses to consider caps on greenhouse gases, and the Environmental Protection Agency says that the Clean Air Act does not apply to CO2.
Meanwhile, California, with over one thousand miles of coastline and a Sierra snow pack containing one third of the state’s annual water supply, faces rising sea levels and rapidly melting snow. This threatens levees, flood control systems and California’s irrigated agriculture. Already, spring snow melt occurs a week earlier, with greater flooding, than it did thirty years ago. The United Nations Intergovernmental Panel on Climate Change just warned us again that the threats from global warming are mounting. It is time to act.
Under our tripartite system of government, courts have an essential role to play, even in issues as complex as global warming. Justice Holmes could be speaking directly to the automakers, when he wrote: “This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of…its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” And, we can add, whether emissions of greenhouse gases can harm its economy and environment.
Global warming is a serious, unavoidable challenge and we need to face it. The path of litigation, first taken up by the auto companies, is not my preference. But a legal cease fire requires that both sides lay down their arms. We should use our considerable joint resources to help fashion a common sense and practical approach. I stand ready to do so.