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.