A Stitch in Haste

State-versus-industry shakedown lawsuit du jour:

Attorneys general from eight states and New York City are stepping into the debate over global climate change, vowing to force the nation's largest power companies to cut their carbon dioxide emissions.
...
The attorneys general claim greenhouse gases like carbon dioxide could have catastrophic effects, including increased asthma and heat-related illness, depletion of drinking water supplies, a decline in fisheries and erosion of infrastructure.

Marc Violette, a spokesman for New York Attorney General Eliot Spitzer, declined to comment Tuesday on details but said the lawsuit would, "for the first time, put global warming on the litigation map." "This is a precedent-setting, first-of-its-kind lawsuit," he said.

Scott Segal, director of the Washington, D.C.-based Electric Reliability Coordinating Council...criticized the lawsuit for trying to hold individual companies responsible for global climate change.

"If you gave the facts of global climate change to a first-year law student, and they recommended a public nuisance case, they would get an 'F,'" Segal said. "The idea that any one company's emissions are responsible for global climate change is more political science than environmental science."

For the non-lawyers:

public nuisance = an act that unreasonably interferes with the health, safety or property rights of the community. Recovery is available only if a private party has suffered some unique damage not suffered by the public at large.

Read that carefully:
--How exactly are power plants supplying power behaving "unreasonably"?
--How are eight states (let's not forget NYC!) "private parties"?
--How is the supposed harm they have suffered "unique"? (After all, it's allegedly "global" warming.)
--How can the government (i.e., the public) possibly be suffering damage "not suffered by the public at large"?

Want more?

--"Governmental authorization" is a defense to public nuisance. In other words, if the utilities have governmental permission to do what they do, then they cannot be sued for it (at least not via a public nuisance claim). I might throw in some "unclean hands" and equitable estoppel arguments in there for flavor (i.e., if the states regulate these utilities, or regulated them in the past, then those same states should now be barred from crying foul (or "foul air").

--Public nuisance is a tort. An element of any tort claim is causation, both factual and proximate. Last time I checked, global warming was a theory, and a hotly debated one at that (no pun intended). It almost certainly cannot be used, by itself, to satisfy the causation element.

--The plaintiffs insist that they are not seeking damages (yet), but rather want to compel utilities to curb their carbon dioxide emissions. Fine, then they also have the added hurdle of satisfying the "irreparable injury rule" (i.e., demonstrating that monetary damages are inadequate and that an injunction is therefore the only viable remedy).

The utilities should dig in their heels and fight this nonsense tooth-and-nail. And the AGs should be taken to task as to why they are wasting resources (i.e., taxpayer dollars) on what they know is flat-out frivolous litigation.

Stay tuned...

UPDATE #1: Jonathan Adler at NRO's The Corner has a great quote from the Connecticut AG:

"Think tobacco, without the money."

Couldn't have said it better myself...

UPDATE #2: Commons Blog has more.