Wednesday, February 6, 2008

The lawyers will get us there!

For those of you that think I’m being sarcastic, I’m not. I genuinely believe that litigation will solve the global warming issue (at least start the ball rolling).

I watched Hot Politics last night and found that it gave a very good overview of the topic. I was a bit disappointed in PBS in that it did not try to explain why the various administrations failed to act on the topic of global warming, that politics trump policy.

Section 7 was very encouraging in that it showed that public opinion is turning, people are no longer in the questioning phase and something is starting to happen to address the issue. Some states have started to unilaterally enact legislation (CA) and companies are now asking Congress to do something to achieve standardization (they’re afraid that every state will have its own laws).

Obviously this administration will not be able to do anything before the end of its term. I don’t expect the next administration (whichever party takes the White House) to be able to do anything. The same problems that prohibited this and the previous administrations from enacting tough climate change laws still prevail: Politics will always trump policy.

This is where lawyers come in. It is believed that the next big wave of litigation is related to climate change (similar to what we had with asbestos and tobacco). Farmers will sue because of drought, coastal residents will sue because of floods, ski resorts will sue for lack of snow and the list goes on and on.

Obviously a big problem will be establishing causation: who is responsible for the increase in temperature in Alaska that caused glaciers to melt and flood inhabited areas? Was it the coal plant in China or the vehicles in LA? Causation issues are very difficult – who caused what and do you divide the blame by market share or percentage of contribution? In this case it will be the courts that lead the way and we could end up with any number of options:

Option 1: Courts could impose hefty fines on large corporations (those that can be identified as responsible – coal plants, car companies, etc…) and then companies will self-regulate (limiting their own emissions without any intervention by Congress). Or Congress could say no we cannot let these companies suffer so much (or even go bankrupt) and then limit damages and enact some legislation.

Option 2: Courts could side with the corporations but then plaintiffs will have more incentive to lobby congress to do something for them.

Option 3: Courts could split (some favoring companies and some favoring plaintiffs) and then Congress will be pressured to step in and enact something one way or the other.

All of this will at least get something done. And it’s the lawyers who will get us there.

1 comment:

Ross Tomlin said...

You may be onto something here, hacfred. Prof. Webber mentioned in class that regardless of which presidential candidate and party takes the White House in 2008, a reversal of Bush/Cheney's "hear no evil, see no evil" stance as documented in PBS's "Hot Topic" is bound to follow. While I hope this is the case, I'm not sure I share said optimism. Assuming McCain is the Republican nominee, while he at least acknowledges that climate change is a problem, he has made troubling statements in the past that he would favor a lax, small government presence in terms of pushing much-needed reform. On the other side of the fence, Obama, should he get the nod, has proven to be more interested in so-called unity and less interested in much-needed progressive reform in areas like healthcare and climate change. (Clinton, I think, has a better handle on policy initiatives and stands the best chance of delivering environmental/energy reform.)

Doing the math here, two of the three prospective candidates/would-be presidents are unlikely to go the distance on climate change. Litigation, just to come full circle, may well be the only recourse.