Twisted legal argument has pushed the US to the verge of a potentially costly litigation spree over climate change. And twisted legal argument might be the only way out of the mess.
The heavy hand of jurisprudence, blind to scientific distinction, is equating greenhouse gases with air pollutants because of their contributions to atmospheric warming. Carbon dioxide, a substance essential to life, thus falls subject to the same regulatory treatment as airborne toxins. This makes no sense. But CO2 is the villain of global-warming politics because of its correlation with human activity.
Extended confusion
Legal entanglement began with a 2007 Supreme Court decision authorizing the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act, subject to a finding that the substances threatened human health. EPA, of course, has made that determination and promises to exercise its new authority if Congress doesn't cap emissions by statute.
Courts, meanwhile, are hearing cases that extend the Supreme Court's confusion to specific calamities of the biosphere. Murphy Oil, for example, has been sued for damage to Gulf Coast property during Hurricane Katrina in 2005 on grounds that combustion of its products emitted carbon dioxide, which aggravated global warming, which intensified the hurricane. Similar actions have been filed against other oil companies and coal-burning power producers. Courts have mostly dismissed the cases for lack of merit. Lately, however, appellate courts have ruled for plaintiffs in a couple of cases, including Murphy's. Now the prospect looms for a spate of lawsuits against any wealthy emitter of CO2 (OGJ Online, Oct. 22, 2009).
This compounding of nonsense cries out for congressional repair. But the Democratic leadership is trying to push into law controversial climate-change responses that would turn energy markets into theaters of governance. It would use the litigation monster as a political lever to win support for its economic siege via cap-and-trade.
The only hope for a reasonable outcome might be a legal flanking movement that probes the core of climate-change fear.
One of many perversions in climate-change politics is the obsession with CO2. News stories frequently describe the compound as the most important greenhouse gas, which it is not. It's just the greenhouse gas most easily blamed on people, specifically their use of fossil energy.
Far more important as a warming agent than CO2 is water vapor. In fact, some scientists say further human contributions to CO2 in the atmosphere can have only minor warming effects. Predictions of catastrophic warming depend on assumptions that CO2 amplifies net warming attributable to water vapor and clouds. Computer models used by the Intergovernmental Panel on Climate Change assume such amplification and produce, in some cases, alarming forecasts of global average temperature.
Real-world physical interactions, however, seem to differ from those assumptions. Warming from rising CO2 concentrations might, in fact, produce offsetting changes in clouds and water vapor. Such offsets might help explain an apparent cessation—unpredicted by computer models—of warming since 1998.
"With each passing year, experimental observations further undermine the claim of a large positive feedback from water," testified William Happer, Princeton University professor of physics, at a Feb. 25 hearing the Senate Environment and Public Works Committee. "That is, water vapor and clouds may actually diminish the already small global warming expected from CO2, not amplify it."
Belief and sacrifice
Because climate feedbacks are poorly understood, they represent an active area of research. Until more is known about them, moderation of CO2 emissions is prudent. Yet current proposals are anything but moderate. They call for extreme emission cuts and consequent sacrifice in service to the unsubstantiated belief that climate feedbacks are, on balance, ominous. While not everyone shares the belief, everyone would make the sacrifice.
This is tantamount to state-imposed religion. A clever lawyer might make a constitutional case out of it. The argument surely would be a stretch. Some might call it laughable. When tort cases that ask energy suppliers to pay for weather damage advance in the judicial system, however, the potential for laughter no longer can be seen as a restraint.
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