Suing Big Energy for Global Warming?
posted by Frank Pasquale
The Tom Ashbrook show features two innovative (and perhaps quixotic) attorneys who are suing “24 oil, coal and electric companies” for global warming on behalf of the “tiny fishing village of Kivalina,” which is “falling into the sea.” I predict the defense will be reading David Dana’s paper “The Mismatch between Public Nuisance Law and Global Warming” very closely.
Meanwhile, Dean Saul Levmore of Chicago predicts a “battle of the generations” on the issue, while Eric Posner and Cass Sunstein discuss what justice requires the US to do here. I was disappointed that these discussions did not adequately focus (or perhaps ignored–but I can’t claim to have listened to every minute) on the extraordinary waste of energy in much of the US (and some other parts of the developed world). Autos in Europe & Asia routinely get much better mileage; just consider these stats on fleetwide standards for new vehicles:
Japan: 46 MPG
EU: 43 MPG
China: 36 MPG
US Cars: 27.5 MPG
US Light Trucks: 22.2 MPG
Since 1980, consider how the following countries’ oil consumption moved:
Denmark: Down 33%
Sweden: Down 32%
Germany: Down 20%
France: Down 14%
Finland: Down 14%
Italy: Down 13%
Japan: Up 0.2%
UK: Up 2%
US: Up 21%
Now there’s a real triumph for the US’s resistance to “central planning” for a sustainable future.
I’m sure that many great and good legal analysts will be mocking the Alaska nuisance suit against big energy. But they might want to consider first what alternative exists given the apparent stranglehold of big energy over the US political process, and the warped priorities that predictably brings. It’s all very well to sign up for a “Pigou Club,” but when you’re inextricably tied to politicians who oppose even the most minimal steps toward energy independence, it’s a bit disingenuous to claim that you really care about the problem.
May 16, 2008 at 8:31 am
Posted in: Environmental Law
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Responses (6)
Patrick S. O'Donnell - May 16, 2008 at 10:02 am
As Robert E. Goodin wrote in Political Theory and Public Policy (1982),
The “perverse and pervasive doctrine of incrementalism” “is an undeniable success, in purely descriptive terms. Most policymaking surely does proceed incrementally, if only because the power relations and organizational routines underlying it themselves vary slightly from one period to the next. But advocates of incrementalism…want to claim more than descriptive success. For them, incrementalism is not only inevitable in practice but also desirable on principle. Policy, they say, *should* be made through a series of small changes, with each successive step based on an evaluation of the observed results of the last.
The prescriptive case for incrmentalism rests on twin foundations. First is the claim…that we cannot anticipate the real effects of social interventions prior to actually experiencing them. Second is the claim…that even if we could anticipate the outcomes we could not anticipate our evaluative response prior to actually experiencing these outcomes. Underlying all this is a more fundamental presupposition concerning the possibility and necessity of theory for policymaking: ‘analytical problem-solving’ (‘intellectual cognition’) is shunned because our social theories are too infirm to form the basis for policymaking; and incrementalism (‘social interaction’) is championed as a reliable method of policymaking in the absence of such theories.”
Perhaps needless to say, I think Goodin makes a persuasive theoretical and practical argument against incrementalism.
Relatedly, Jon Elster summarizes methodological principles gleaned from Tocqueville about how to properly assess the introduction of new institutions and constitutions, noting that “it will not do to argue with Edmund Burke or [Karl] Popper that trial-and-error or piecemeal social engineering can be a substitute for well-founded predictions, since these methods fail to respect principles [drawn from Tocqueville]. By requiring initial and local viability of institutional reform, the incremental method neglects the fact that institutions which are viable in the large and in the long term may not be so in the small and short term. This is, in fact, the main objection that Tocqueville makes to Burke’s evaluation of the French Revolution.”—Elster, Sour Grapes: studies in the subversion of rationality (1983).
Finally, reference to the “apparent stranglehold of big energy over the US political process” might be extended and generalized to the power of corporations in general, and not just over the political process in particular (Cf. Stanley A. Deetz, Democracy in an Age of Corporate Colonization, 1992, and Joel Bakan’s The Corporation: The Pathological Pursuit of Profit and Power, 2004). Two books (looking at the big picture mind you), now over two decades old, remain relevant to proposals for wending our way out of this mess: Robert Dahl’s A Preface to Economic Democracy (1985) and, Joshua Cohen and Joel Rogers, On Democracy: Toward a Transformation of American Society (1983).
Maryland Conservatarian - May 16, 2008 at 10:14 am
“…but when you’re inextricably tied to politicians who oppose even the most minimal steps toward energy independence…”
Yes!! Thank You!! all those pols who consistently vote against drilling in ANWR & the Gulf, oppose any kind of continuation of the development of nuclear power and are dead-set against coal power plants as a rule – they all need to be publicly shamed for not allowing the market to work freeing us from our foreign energy dependences.
Thanks for taking the lead on this…
Patrick S. O'Donnell - May 16, 2008 at 10:42 am
Nuclear waste disposal remains an insuperable problem, reliance on coal is now environmentally unconscionable, and simply drilling for more oil does nothing to overcome ecologically unsustainable dependency on fossil fuels. All three “solutions” have short-term (hence myopic) appeal but reflect the utter absence of an ability to learn from history, to understand ecological principles and processes, or to think in an environmentally intelligent manner. But by all means, continue to chant the spellbinding if not hypnotic ideological refrain of a “free market” by way of a magical charm to heal all that ails us: what an exquisitely rational response to a hyrda-headed problem!
Maryland Conservatarian - May 16, 2008 at 6:30 pm
Mr. O’Donnell – what? no citations?
Patrick S. O'Donnell - May 16, 2008 at 7:52 pm
Well, just for you, see here: http://www.jurisdynamics.net/files/documents/environmental_and_ecological_worldviews.doc
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