The Climate Litigation Danger

Slate's blog on legal issues.
April 17 2008 12:04 PM

The Climate Litigation Danger

In his speech yesterday on climate change, Bush made one good point among many other not-so-good points:

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As we approach this challenge, we face a growing problem here at home. Some courts are taking laws written more than 30 years ago -- to primarily address local and regional environmental effects -- and applying them to global climate change. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate. ...

Decisions with such far-reaching impact should not be left to unelected regulators and judges. Such decisions should be opened -- debated openly; such decisions should be made by the elected representatives of the people they affect.

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Several federal district judges have made a similar point in the course of dismissing tort suits based on global warming.  In these suits, people whose lives have been affected by adverse weather conditions of various sorts, argue that energy companies, by contributing to global warming, have caused the harm and ought to pay them damages.  Rather than addressing the scientific basis of these claims, the judges have pointed out that climate change is an international problem and judges are powerless to develop a sensible approach to address that problem.  They lack expertise, but, more important, they have no power to compel Chinese and Indian polluters to reduce their emissions.  Successful tort suits would raise the cost of greenhouse-gas emitting activities in the United States, but in an ad hoc way that does not address the problem effectively, and would interfere with negotiations between the United States and other countries.

If these judges are correct, their logic applies to agency regulation as well, and it is wrong to criticize the EPA for failing to aggressively regulate greenhouse-gas emissions under the Clean Air Act and other environmental statutes.  The EPA can probably do a better job of developing standards than courts can, but it is still hampered by its limited jurisdiction (effective climate regulation must apply to all major sources of emissions), its limited remedial tools (it has no power, for example, to levy a tax on carbon emissions), and its lack of power to regulate industries in foreign countries.  Court or agency-generated regulation of greenhouse gases in the absence of a climate treaty that binds all major economies will have little impact on the overall problem, while producing costs, with one particularly bad scenario being that of polluting industries migrating from the United States to countries with weaker regulations, and exporting goods back to Americans.  Whatever the merits of its legal position in ongoing litigation (see David Barron on this issue ), the EPA has good reasons to hold off regulating until a climate treaty and implementing legislation have been put into place.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.