CO₂ Lawsuit: Scopes v2?

21 July 2004

In a move that takes the policy debate about CO₂ and climate change away from federal politics and puts it in the courtroom, 7 states and New York City have filed suit against five big US power companies for creating a public nuisance with their greenhouse gas emissions. This action may ultimately have an impact similar to that of the Scopes (Monkey) trial, in that what ultimately is at issue is not the activity of these particular power companies, but the scientific theory of climate change and the harm that climate change will cause.

The lawsuit accuses the five companies’ power plants of being responsible for almost a quarter of the U.S. utility industry’s annual carbon-dioxide emissions and about 10 percent of the country’s total. The power companies being sued said they are striving to cut emissions and had programs in place to cut even more. Reuters.

The plaintiffs are not seeking monetary damages but are asking for a court directive for reduction in emissions.

CO₂ is not recognized as a pollutant by the EPA. The only state to tackle it formally as such so far is California, with AB1493 (Climate Change Bill), requiring aggressive reductions in CO₂emissions for cars sold in California. In essence, these states are using the suit as a mechanism for removing climate change policy debate from the political arena, and putting into a forum where—at least presumably—data and evidence matters more. In other words: the theory of climate change will take the witness stand to testify and undergo cross-examination.

For those who give credence to the vast majority of global scientific opinion, this is a good move. The current emissions trend is not encouraging, and slowing the dissemination of CO₂ into the atmosphere is going to be about as easy as having the Titanic avoid the iceberg. Thrashing around the Kyoto Protocol aside, numerous private companies have stepped up to tackle emissions reduction on their own, including fossil fuel companies such as Shell and BP. Increasingly, emissions reduction is being recognized as sound business, and in some sectors such as the re-insurance industry, a critical need.

Carmakers will be watching this with concern, because it is transport, not power generation, that accounts for the largest amount of CO₂ emissions annually. If the power companies lose, automakers can be sure that the verdict will ripple over onto their turf.

(For a good current, flash overview of carbon emissions from the different sectors, including historical data, look at this report from the EIA in June 2004 here.)

I imagine, though, that the auto companies’ feelings might be mixed. On the one hand, carmakers fear that the incremental cost, as moderate as it is, to meet the emissions standards of AB 1493 will put them at a competitive disadvantage. (And as I’ve argued frequently, that stance underestimates their consumers.) On the other hand, if this suit becomes legal validation for climate change theory, and leads to more rigorous policy action on the part of the EPA and other government agencies, well, the carmakers are sort of off the hook. It won’t just be California and perhaps a few renegade Eastern states with special demands, it would be the entire country.

Furthermore, this is no surprise to a global company. Emissions reduction and the impact of climate change is high on global governmental and corporate agendas—with a few obvious and notable exceptions.

So, hmmm. Eliot Spitzer as a Clarence Darrow? Only this time as the prosecutor, not the defense attorney.