Two weeks ago, eight state attorneys general (representing California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin), joined by corporation counsel of New York City, announced a federal lawsuit against five power companies (American Electric Power Co., Cinergy Corp., Southern Co., the Tennessee Valley Authority and Xcel Energy Inc.).
Plaintiffs contend that those companies produce approximately 10 percent of the nations carbon dioxide emissions as a result of burning fossil fuels and are thus contributing to global warming. The lawsuit has been brought under the legal theory of "public nuisance" caused by the generation of greenhouse gases as a byproduct of power production.
Devoted observers of state AG gang lawsuit activity find it no surprise that New Yorks Eliot Spitzer and Connecticuts Richard Blumenthal are leading the effort. Both are seasoned veterans of practicing more law before cameras than in courtrooms, free publicity for such "crusaders" being the mothers milk of their political ambitions. That there is a substantial cost to taxpayers, in both real dollars and the diversion of government resources, just doesnt concern them.
"Think tobacco, without the money," said Blumenthal, trying to explain the lawsuit, which seeks to force reduced emissions rather than obtain monetary damages. Well, okay, that seems noble, but not a few legal scholars see the effort in far more derogatory terms a frivolous stretch by authority-poaching marauders seeking to exploit popular fears being one of the few that can be printed without offending anyone but its perpetrators and sky-is-always-falling environmental activists.
The street cred of the aforementioned esteemed gentlemen and their pick-up team of fellow AG travelers was not at all enhanced by the publication that very same week of a piece written by a solar physicist. Dr. Paal Brekke is the European Space Agencys deputy project scientist for the ESA-NASA Solar and Heliospheric Observatory.
Heres his lead sentence, written for the BBC: "Natural processes involving changes in the Sun could have at least as powerful effect on global temperature as increased emissions of carbon dioxide (CO2)."
Dr. Brekke goes on: "reducing greenhouse emissions will have much less effect in halting rising temperatures than some people think, and it might have hardly any effect at all."
Note Dr. Brekkes caution, characteristic of good scientists who understand that science requires proof before proof can be stated. Would that the practice of law be guided by even a modicum of that disciplinary restraint.
Messrs. Spitzer, Blumenthal, et al., face a mountain range of legal hurdles and scientific uncertainties to even make the case that the lawsuit should be heard, not that we think they really care. If the "legal system" dismisses their "crusading efforts for the people," well that only enhances their obligation to seek higher office in their selfless quest to achieve all that is good for everyone.
Spitzer, demonstrating the ability to precisely duplicate his tried and true playbook, was encouraging settlement even as the lawsuit was filed. Although the waste of taxpayer money (twice, since the defendants will have to pass along their legal fees to consumers) is certainly to be decried, if the suit is not dismissed as soon as a judge gets around to it, we hope the power companies tell the AGs to stick it where the sun dont shine. While we dont have the credentials to comprehensively evaluate the totality of science regarding global warming (and most of those who write about it have greater interest in point of view than point of fact), that science is far from settled, as Dr. Brekkes observations demonstrate. If the case does go to court, we herewith offer to represent the Sun, pro bono.August 5, 2004
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