The Other Shoe

We have reached a major milestone in our approach to climate change, with politicians of every stripe positioning themselves as leaders on this issue. Earlier this week, we heard former V.P. Al Gore announce a "Carbon Freeze" campaign. Then the Department of Energy issued the Administration's latest plans for technology programs aimed at reducing future emissions of greenhouse gases. Now we see the Attorney General of California filing suit in US district court against essentially the entire US auto industry, both foreign- and domestic-owned, alleging something akin to product liability with regard to CO2 emissions from cars. Is this a coincidence, in a year in which his party is trying to unseat Governor Schwarzenegger, who has pushed through his own greenhouse gas reduction program? But there's more at stake here than a new campaign issue. Ultimately, this concerns how and where climate change policy will be set in this country. That's more than just turf; how this gets resolved will have an enormous influence on the effectiveness of our response to a key global threat.

It shouldn't surprise anyone that this issue is turning up in state legislatures and the courts. The federal government effectively ceded its lead on climate change when it opted out of the Kyoto Agreement, by a 95-0 Senate vote in 1997. Nor can we forget that for decades environmental policy has been shaped as much in the courts as in the Congress. The result has been a mixed bag of conflicting regulations and genuine social benefits. But whatever the past track record of judicial involvement in setting environmental law, the courts have never before dealt with an environmental issue that is truly global in scope, rather than regional or local, or that arises not from some impurity or defect, but as an unavoidable consequence of the combustion of carbon, upon which most of our civilization is based.

Turning CO2 into the next tobacco-style tort bonanza, either by designating it as a pollutant or alleging specific damages, as California is seeking to do, is wrong-headed and will prove counterproductive to any serious effort to address the causes of the problem. Transferring billions from car companies--or oil companies--to state treasuries isn't going to advance the cause of putting more hybrid or fuel cell cars on the road, or ramping up biofuels production. It might just retard this effort.

At the same time, it's hard to foresee any slackening in state climate change initiatives until the federal government reasserts its natural primacy in this area, and that will require more than just technology programs. The current pace of technology development and adoption, even with appropriate incentives to make the results more attractive to businesses and consumers, can only shift the future trendline for incremental consumption of fossil fuels. The states are looking for something more fundamental, addressing baseline consumption by existing cars, appliances, homes and factories. Unfortunately, we could end up with 50 different approaches to a problem that affects the whole country and the entire globe.