Tuesday, March 10, 2009

Legal Challenges to Global Warming Legislation

Overturning or repealing environmental legislation such as California's AB 32 is the subject of this essay.

There are various bases upon which lawsuits may be filed against government agencies, states, and the federal government.  

One such basis is that the law is unconstitutional. The first step in such a lawsuit is to prove that the plaintiff has standing to bring the lawsuit. The plaintiff must show actual harm, or imminent harm, and that defendant's actions are the actual and proximate cause of that harm, further, that a favorable ruling by the court will redress the wrong. There are other aspects of standing, which I will not go into here.

After showing one has proper standing, showing the law is unconstitutional is rather difficult with an environmental regulation. Such regulations are accorded Rational Basis scrutiny. This means the plaintiff has the burden to show that the regulation is not rationally related to a legitimate government interest. Protecting the environment, and people's health, are legitimate government interests. Even a small amount of science is sufficient to form a rational relationship to that government interest.  

Attacking the science is one avenue, and may be successful, but in the case of global warming, aka climate change, this will prove exceedingly difficult due to the vast amount of peer-reviewed publications and the stature of the eminent scientists who authored those studies. Although, it would be quite interesting to hear the eminent scientists under oath, explaining some of the inconsistencies that are regularly discussed on this blog, and others such as WattsUpWithThat.com, and Climate Audit.  

A better chance of success exists by showing that the regulation poses an undue burden on those who are regulated, as for example, forcing an industry to invest many billions of dollars to achieve a $2 benefit. There is a cost/benefit analysis involved. Testimony by experts as to costs, and likely benefits, is required.  

Because almost every thing is harmful to some portion of the population, even in small quantities, it is not a question of zero harm, but how much harm is to be accepted.  

A third prong of attack is the timetable for compliance. The regulated entities as plaintiffs may be able to show that a short timetable is overly burdensome, and thereby gain more time to comply. As examples, reducing lead in gasoline took several years, and reducing acid rain precursors from power plants also required several years.  

A fourth avenue of attack is one that Tesoro Refining and Marketing took in suing the California Air Resources Board over bio-fuels in gasoline. This avenue alleges that the regulation is inconsistent with the enabling legislation. The enabling legislation is very broad, with few specifics. However, the regulations are very specific and detailed.  

For AB 32 in California, the broad legislation is AB 32 itself, aka Global Warming Solutions Act of 2006. That was passed by both houses of California's legislature, then signed into law by Governor Schwarzennegger. The regulations to implement AB 32 are written by California's Air Resources Board, with input and advice from other state agencies, and the public.  

Tesoro's claim (paraphrased) is that the broad legislation requires each specific implementation measure to be effective in reducing greenhouse gases, but producing ethanol from farm crops (corn) consumes as much energy as, or more than, is produced by burning ethanol in vehicle engines. Thus, there is no net reduction in CO2 to the atmosphere.  

A fifth avenue is to pass additional legislation to repeal the first law, or to modify the first law such that the impact is lessened. Two bills are currently proposed in California to repeal or soften AB 32.  

On the national level, the EPA now must consider CO2 as a pollutant capable of being regulated under the Clean Air Act. This is from the U.S. Supreme Court's 2007 decision in Massachusetts v. EPA, 549 U.S. 497 (2007). President Bush's EPA did little in this area, but President Obama has directed the EPA to move smartly on it. Given the strength of a Supreme Court ruling, even though it was a 5-4 decision, potential lawsuits that challenge the constitutionality of a greenhouse gas law will likely fail.  

The best plaintiffs can hope for are some of the other available avenues described above.  

Obtaining irrefutable evidence that increased CO2 and other greenhouse gases are not warming the globe would greatly improve the success of such lawsuits. As examples, advancing or stabilized glaciers, increasing or stabilized ice caps, cooling global temperatures, and stabilized or falling sea levels all would emphatically refute the theory that atmospheric greenhouse gases cause global warming and the associated adverse consequences that are regularly broadcast in the media. Some of the adverse consequences are ill health from warmer air, the spread of tropical diseases, flooding in coastal zones, saltation of fresh coastal waters, and more intense tropical storms and hurricanes.

Nothing in this comment is to be construed as, nor is it intended to be, legal advice, and nothing written here creates an attorney-client relationship. Anyone seeking legal advice should consult a qualified attorney.

Roger E. Sowell, Esq. 
Climate Change Attorney
To contact Mr. Sowell, click here for his website.


Jeanette said...

Finding a legal way to stop "global warming legislation" seems extremely difficult. Thanks for this clear description of what one must prove to challenge a law. I try not to become someone in the hopeless category, but when I experienced that no one, including the Bush administration and the Supreme Court, would vet whether or not a candidate for President was a "natural born citizen" as required by our Constitution, I certainly became disillusioned.

I find it so interesting that the AGWers are trying to tar reasonable scientists with the "right-wing conservative" lable. Actually, I see that all liberals and conservatives are left out of the current power structure. Only "progressives" and further-leftists are running the show. And I am very surprised at those I used to believe were liberal joining up.

Anyway, thank you for your comments on WUWT and for your own blog. I feel like I have an internet friend in California. Your ideas about water distribution from those who have it to California and the more arid West is exactly the kind of project our tax money should fund. Keep the great ideas coming; maybe a global cold spell will bring the grandiosity down a peg or two.

Roger Sowell said...

Ms. Jeanette,

Thank you for the kind words!

There are, as I wrote briefly, several ways to challenge an environmental regulation. There are many more, and each can be used when the situation is right.

Such legal challenges can delay the implementation of a law, and that can be useful. In the case of climate change, it might be useful to tie up the implementation for a decade or two, and let the climate change so we see what we are up against, if anything. We are working on that for California's AB 32.

This is somewhat like turning the tables on the environmentalists, who delight so in filing lawsuits to delay projects.

And I am honored to be your California friend!

Regarding the NEWTAP project, I hope to see it function someday. It has always dismayed me to see great floods in the midwest, while the western states are suffering water shortages.

There are indeed other big ideas to solve big problems. Stay tuned!


Norman said...


Yes, the Court Opinion established that “Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases …(1)” But…

According to the Opinion narrative, The State of Mass used Dr. Michael MacCracken as one of their expert witness. Per Dr. McCracken’s bio (2) he “coordinated the official U.S. Government reviews of several of the assessment reports prepared by the Intergovernmental Panel on Climate Change (IPCC), and he was a co-author/contributing author for various chapters in the IPCC assessment reports.”

It is reasonable to infer from reading the Opinion that the State of Mass and the Court did rely on the IPCC data that is now being questioned in order to conclude that in their opinion, “scientific certainty” did exist wrt to CO2 being an “air pollutant”.

The Opinion also states that: “If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.”

It is also clear from reading the Opinion that the EPA did not agree with the State of Mass that the GW science was certain and they tried to argue that the EPA should not be forced make a ruling to have CO2 declared a “air pollutant” as demanded by the State of Mass.

The EPA obviously lost that argument due to the testimony of expert witnesses and one can conclude that the Court was convinced that “scientific certainty” had been established.

One has to wonder if that “evidence” included the Mann Made warming “Hockey Stick”? It would be interesting to read the Court Transcripts in order to establish what props were used by the State of Mass lawyers and their Expert Witnesses.

The Court Opinion concluded by stating that: “In short, EPA has offered no reasoned explanation (as in lost the argument?) for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious or otherwise not in accordance with law.”

And there you have it – in order to comply with the law as read by the Supreme Court and contrary to the EPA’s “expert” advice, CO2 was subsequently ruled an “air pollutant” and which has now been elevated to the exulted status of being a “dangerous pollutant”.

Is there a way to get the horse back in the stable and put the correct facts in front of the Supreme Court as it is clear from the Climategate e-mails that the Supreme Court was unknowingly fed false data that was taken at face value (3), the EPA lost the case, heads rolled and that we are the worse for it with science being “forced” to suit policy decisions, right or wrong.
(1) http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf

(2) http://www.climate.org/about/maccracken-bio.html

(3) http://scienceandpublicpolicy.org/originals/climategate.html