With debate raging in Congress over how to reduce greenhouse gases, it is easy to overlook the critical developments on this issue that are simmering in federal agencies. Federal rulemaking is certainly far less entertaining than the pageantry of politics, but one proceeding now coming to a head at the Environmental Protection Agency will have profound implications for climate change and the conduct of everyday commerce.
While nearly every sector of our economy will be bracing for its negative impact, one sector—the litigation industry—can look upon the EPA's action as a job-creating government stimulus.
Empowered by a 2007 U.S. Supreme Court ruling, the EPA proposed a finding last April that greenhouse gas endangers public health and welfare and contributes to climate change. The proposal is undergoing a regretfully abbreviated 60-day comment period that ends tomorrow. But EPA statements and related actions clearly indicate the agency intends to ultimately find "endangerment."
Such a finding triggers regulation of sources of greenhouse gas emissions under the federal Clean Air Act, a law written over 30 years ago to address local and regional environmental problems. One legislative leader on climate change, Rep. John Dingell, has remarked that it would be "insane that [Congress] would be talking about leaving this kind of judgment ... to a long and complex process of regulatory action," affecting "potentially every industry and every emitter and every person in this country." From cars to cows, energy plants to neighborhood dry cleaners, landfills to restaurants, the regulation would encompass American businesses of all types and sizes.
A formal government proclamation that greenhouse gases are a threat to public health and welfare, and are thus subject to the Clean Air Act, is a dream come true for plaintiffs' lawyers and litigious professional activists. Up to now, litigation has thus far, thankfully, played a minor role in addressing climate change. Courts have largely rebuffed lawsuits by state attorneys general alleging that greenhouse gas emitters were a "public nuisance." (A $400 million nuisance and conspiracy suit filed against 23 energy companies by an entire Alaskan village remains undecided.)
But the slow drip of climate change lawsuits is about to become a deluge, drowning the judiciary and thousands of businesses, in a tsunami of litigation.
Swiss Re, a leading insurance company, recently opined that global warming suits will explode and expand faster than asbestos litigation. The EPA's endangerment finding will be cited in countless class actions and other suits alleging that productive economic activity caused health problems or led to damaging heat, flooding, drought, wildfires, or the spread of pathogens.
The EPA's proposal makes no effort to quantify the risk of any of these potential outcomes of global warming, or to specify a direct health effect from them. This won't, of course, stop creative plaintiffs' lawyers from using EPA's finding to sow fear or prevent judges and juries from favorably noting the government determination in liability suits. Just as with asbestos liability, exposure to climate change litigation will be spread throughout the economy, with the small scale rancher or farmer, the corner restaurant, and the community nonprofit hospital bearing the brunt of the burden.
In addition to civil liability suits, EPA's endangerment finding will allow activist organizations to file citizen suits against businesses whose greenhouse gases emissions allegedly violated the Clean Air Act. These "private attorney general" actions can be very lucrative and activists regularly deploy them to expand the boundaries of laws like the Clean Air Act to create even more litigation opportunities.
In litigation, there is no occasion for the parties, the judge, or the jury to weigh the costs, benefits, feasibility, and both short- and long-term consequences of different potential legal outcomes. This concern is significantly amplified when the overarching matter before a court is as complex, or as global in nature, as global warming.
Glenn G. Lammi is chief counsel to Washington Legal Foundation's Legal Studies Division.