Earlier this week, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Connecticut v. American Electric Power. In this case, several state attorneys general are suing a handful of utilities alleging that the utilities' emissions of greenhouse gases contribute to the "public nuisance" of global warming. This is an innovative use of a traditional, common law cause of action. Nonetheless, I am quite skeptical, as I explained in this 2004 column and this interview. The lower court was also quite skeptical of the suit, dismissing it as nonjusticiable (see story here).
From the accounts I've heard and read, the Second Circuit panel was somewhat skeptical of the state AGs claims. Here the Cato Institute's Jerry Taylor provides a report, along with some libertarian commentary. Taylor thinks the suit is a somewhat welcome development insofar as it represents a greater willingness among environmental advocates to rely upon property rights and common law causes of action (instead of centralized regulations) to address environmental harms. As Taylor also notes here, I've explored the question of how to apply property rights principles to climate change, and my conslusions are not those typically advanced by free market advocacy groups (see here, here, and here).
What is the damage to a particular state of having its average mean temperature go up 1 degree or 2 degrees in 100 years. Future damages based on an assumed increase of 1 or 2 degrees over 100 years should be too speculative to be awarded. So even if they prove causation and apportionment percentages to the defendants what damage is there from having the average temperature go up by .01 or .02 degrees in the past year?
The attorney generals or any state politician wasting money on these lawsuits should be shot. Any contingency fees for private lawyers bringing these or any kind of mass tort class action lawsuits should be banned permanently.
Says the "Dog"
So where does this supposed "federal common law of nuisance" come from, apart from the hyperactive imaginations of AG Blumenthal and AG Spitzer?
In any event, I think you hobble your arguments by failing to examine a key question: from where do these "property rights" of which you speak come? They do not drop from the sky from God, or a magical universal Constitution. In law, perhaps, you are used to an unquestioning acceptance of axioms, such as written law and constitutions. But in real life people don't behave that way. What is axiomatic are not our formal systems but life the way people live it. That is, over the long term, people design their laws and notions of "rights" to suit life the way they live it, not the other way around, however much the latter may occur over the short term.
For myself, I would say property rights are in essence a generic contract between people living in proximity, more or less for the purpose of avoiding the waste of warfare. People say to each other: if you sign on to this bargain, you must agree to lose the following arguments, and in exchange you will be guaranteed to win these other arguments, and furthermore we shall all be spared the uncertainty and costs of warfare between you and those with whom your interests conflict.
Why is this point useful? Because it reminds us that a contract is a bargain between equals. Men make contracts with other men, but not with cows or pigs. That's nature, red in tooth and claw.
However, you've spoken of those who might sue because their property rights have been violated by global warmers (e.g. poor Bangladeshi farmers) as if they are inherently inferior in power to those they might sue. You've implied they are pigs and cows suing men.
This can't be right. Either the Bangladeshi are the equals, more or less, in power to the global warmers, and therefore there exists a contract between them called property rights, or they are not and enjoy no more "rights" than do the elephants and caribou who might suffer from anthropogenic climate change.
If the poor Bangladeshi are essentially equals to the First-World industrialists they might sue, then what is the source of their power? The power to win a war, because there are more of them? The power to economically ruin the industrialist, because they can buy or not buy his product? This needs to be explored, because the exact nature of the latent power of those harmed by global warming is the true and only source of any corrective to the behaviour of those who might cause it.
I think in the end, however, the effort will fail, and for exactly the reasons Mr. Morris suggests: any imaginable chain of causation is just too long and complicated, and implicates far too many people, including local governments and the victims themselves, for the crude machinery of the law to cope with it consistently and usefully.
In the PERC discussion that Jonathan Adler cites,someone asks: "If you build a supermarket next to my mom-and-pop grocery and my sales suffer, can I sue you for damages? No. You did something that harmed me, but you did nothing illegal. That's life. Is global warming necessarily different?" The answer (given by Adler) is: "Yes, it is different insofar as there are physical changes to my land." The explanation of the difference between the example of the pig farm and the example of the supermarket is that the pig farm has changed the physical environment of the neighbor's land whereas the supermarket has not.
But it seems to me not at all obvious that in general, the intrinsic value of the property can be so neatly separated from the way it is used. If a farmer feels that a temperature increase has made the land less valuable for growing a certain crop, then maybe he should simply try another crop rather than file a claim.
What's that? A fancy way of saying: your s**t stinks too?
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Sometime last year, I am pretty sure it was last year, there was supposed to have been a lawsuit filed by a number of state AG's including CT against the EPA to force it to regulate CO2 as a pollutant.
Is this one related to that?