Of Courtrooms and Boardrooms
As environmentalists await a decision in the u.s. supreme court's first lawsuit over global warming, the free market may be starting to regulate carbon on its own.
In 1971 a law professor named Christopher D. Stone was lecturing a class about how dramatic shifts in societal attitudes manifest themselves through sea changes in the law. To illustrate the power such changes in thinking can have, Stone posed this question, “What would a radically different law-driven consciousness look like? One in which Nature had rights. Yes, rivers, lakes...trees... animals. How would such a posture in law affect a community’s view of itself?” The lecture was the starting point for his groundbreaking article, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” which has become required reading for students of ethics and environmental law.
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When “Trees” was written, the environment was more or less indirectly protected as a result of a legal action taken by one party against another—if Smith successfully sued Jones for dumping garbage on his land, the land benefited from the cleanup, but it was not given rights of its own. Stone proposed that an agent could seek standing for the land and sue on its behalf. If the land won a lawsuit any compensation would be put in trust and applied toward the remediation of the injury, not to benefit the agent. Species can now become plantiffs (see Marbled Murrelet v. Babbett), but the idea isn’t without its problems. When Stone’s essay was referenced in a U.S. Supreme Court decision, a poem appeared in the Journal of the American Bar Association about it that read in part:
“How can I rest beneath a tree
If it may soon be suing me?
Or enjoy the playful porpoise
While itıs seeking habeas corpus?
Every beast within his paws
Will clutch an order to show cause.”
It would be nice if someone would become Planet Earth’s attorney and simply sue to stop global warming. But, to establish standing, three requirements must be met. First, something must actually injure the party bringing the suit. The harm can’t be hypothetical. It must be actual or imminent. Second, the petitioner must be able to identify who is causing the harm and to show an indisputable cause-and-effect relationship between his injuries and the respondent’s actions. Third, the petitioner must show that there is an effective means of remedying the complaint. The earth is warming. But who’s causing it? Are the effects ill ones? Whom would the earth sue for relief? And what would the remedy be?
In November 2006 the Commonwealth of Massachusetts took a more conventional route, suing to stop climate change on behalf of itself and 11 other states in the first global warming case heard by the U.S. Supreme Court, Massachusetts v. Environmental Protection Agency. The state sought relief against greenhouse-gas-producing automobiles not by going after their owners, but by asking the EPA to classify carbon dioxide as a pollutant, and to compel it to use the Clean Air Act to require manufacturers to build cleaner cars.
Massachusetts argued that the loss of its coastline due to rising seas shows harm and that alone satisfies the first element required for standing. But the slog from carbon emissions to coastal erosion is a squishy one, as Justice Scalia’s questioning of Massachusetts’ assistant attorney general James Milkey shows:
“I thought that the standing requires imminent harm. If you haven’t been harmed already, you have to show the harm is imminent. Is this harm imminent?”
“It is, Your Honor,” Milkey replied. “We have shown that the sea levels are occurring from current amounts of greenhouse gases in the air, and that means it is only going to get worse as the...”
“When?” asked Scalia. “I mean, when is the predicted cataclysm?”
For its part, the EPA took the maddening position that it does not have the authority to regulate greenhouse gases and it wouldn’t if it did. U.S. Deputy Solicitor General Gregory Garre’s opening statement on its behalf reads like satire: “... the nation’s expert agency in environmental matters concluded that Congress has not authorized it to embark on the regulation of greenhouse gas emissions to address global climate change. And that even if it has, now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change...”
Garre also argued that because U.S. automobile exhaust only accounts for six percent of global greenhouse gases, reducing such a small amount would not be an effective remedy. But Justice Breyer asked, “Suppose others cooperate? Suppose, for example, they regulate this, and before you know it, they start to sequester carbon with the power plants, and before you know it, they decide ethanol might be a good idea, and before you know it, they decide any one of 15 things, each of which has an impact, and lo and behold, Cape Cod is saved. Why is it unreasonable to go to an agency and say now you do your part, which is six percent, and now we’re going to go to a different agency like NHTSA... and we’re going to go to your electricity regulation program... by the time we get those seven things done, we’ll make a big difference.”
This should be music to the ears of architects, engineers, and building owners who are trying to conquer carbon one building at a time. If Massachusetts wins the case, it will be easier to ask the EPA to regulate power plant emissions and other carbon sources, too. But a victory may also not matter much until there is a change in the White House. Even if the court decides the EPA has the authority to write regulations, the agency still has to be motivated to do that. It isn’t.
Christopher Stone’s idea that shifts in the public’s consciousness inspire changes in the law is indisputable, but often change takes a great deal of time. And, if the 89 years that passed between the passage of the 13th Amendment and Brown v. Board of Education is indicative of how long it takes the law to catch up with the public, Cape Cod may be six feet underwater before it does. Can Planet Earth seek relief elsewhere?
Well, perhaps the free market will force carbon producers to self-regulate. Recently, the stock price of Texas energy giant TXU was so depressed by a lengthy negative publicity campaign, the company became the target of a takeover. Texas Pacific Group and Kohlberg Kravis Roberts set out to buy it, while secretly negotiating a deal with Environmental Defense, a group that had been hammering the power company over its plans to build more coal-fired power plants. Environmental Defense agreed to back off if the buyers scrapped plans to build eight of TXU’s 11 proposed plants. They promised that by 2020 it would roll back its carbon emissions to 1990 levels, and support a $400 million demand-side management program. Why? Because they believe an energy company that isn’t spewing carbon is worth much, much more than one that is. What’s at stake? It would be the largest buyout in history, worth $45 billion. Maybe Planet Earth needs lawyers in the boardrooms as well as the courtrooms.
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