It argued the state should be allowed to recover billions of dollars. Judge Martin Jenkins concluded, however, that global warming, at this point, is not a judicial issue--declining to entangle the federal judiciary in a "political" issue.
Judge Jenkins was an appointee of President Clinton, whose appointments were favorite targets of conservative "anti-activist judge" fanatics. Jenkins' decision, despite their opposition, is yet another example of a federal judge's independence and commitment to do the right thing.
In my view, Judge Jenkins correctly decided to stay out of the political thicket of global warming. Of course, I wrote about the need for judicial independence in this column last year ("Judge Not, Lest Ye Be Judged," June 1, 2006) and warned against the increasing hue and cry about "unpopular" judicial decisions. But back to the suit ...
Arguing the "scientific debate is over" about the existence and cause of global warming, California pointed to its effects in the state, ranging from more flooding, less usable water, extreme heat events, and increased risk of wildfires and mudslides. And, through its state attorney general (former California governor Jerry Brown), California asserted two claims against the automobile defendants--public nuisance under federal law and public nuisance under California law.
The automakers moved to dismiss, arguing the case wasn't appropriate for the judiciary but only for Congress and the president. Judge Jenkins agreed. He wrote that, "in this case, by seeking to impose damages for the defendant automakers' lawful worldwide sale of automobiles, plaintiff's nuisance claims sufficiently implicate the political branches' powers over interstate commerce and foreign policy."
Jenkins described the history of national and international efforts to identify and deal with global warming as a social policy issue. Congress, the president and the Environmental Protection Agency have acted repeatedly with respect to automobile emissions, and it would be inappropriate for a federal court to weigh in on what constitutes excessive emissions.
And as Jenkins wrote, automobile manufacturers aren't the only actors causing global-warming emissions. "In this case, there are multiple worldwide sources of atmospheric warming across myriad industries and multiple countries." What's more, it would be difficult for a judge or jury to determine how much harm had been caused by just one faction of one industry's emissions activity.
What happens next and whether Brown will appeal the court's decision is unknown. My forecast: Multibillion dollar damages claims--by "the people" directly against industries emitting greenhouse gases--are a remote prospect. California, at the vanguard of emissions and global-warming investigation, gave it its best shot and came up short. (A couple of other similar suits have failed as well).
More likely, global-warming suits will involve cases, like those in Massachusetts and Vermont, dealing with whether the federal EPA and the states have authority to regulate automobile emissions. So far, the courts say they do.
For now, the heat seems to be off the industries as far as large, private damages actions. And the issue of insuring those types of claims also appears to be on the back burner.
PHILIP G. KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.
November 1, 2007
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