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Hot Air
In one of the most audacious instances yet of Regulation by Litigation, the National Resources Defense Council (NRDC) is representing the Audubon Society of New Hampshire and the Open Space Institute "in the first private legal action ever to seek direct corporate cuts in the emissions responsible for global warming." The case is similar to a suit brought by eight states and New York City against the same five utility companies.

An NRDC attorney describes the suit as representing "a new frontier in the fight against global warming pollution. Today both public and private plaintiffs are asking the court to hold corporate polluters legally accountable for the health and environmental consequences of their emissions. It is a bold, but simple action."

The NRDC Press Release states that "the basis for the suit is the federal common law of public nuisance..." While Winston has no doubt that NRDC has substantial expertise with regard to public nuisances, he finds the lawsuit incomprehensible, other than as a mechanism to generate publicity.

Although they appear to be just silly, the twin lawsuits are a challenge, not to the utilities but to basic democratic procedures. Environmental policies are supposed to be developed through a democratic system with elected representatives setting policies that are implemented through an open, participatory regulatory process. The environmental watchdogs and, most ironically, eight states and a city, are seeking to bypass the public by asking a judge dictate environmental policy.

The most ludicrous aspect of the lawsuit is its legal premise, that the plaintiffs are adversely affected by the "public nuisance" of utilities' non-toxic carbon dioxide emissions. Even the most sophisticated climate change models produce conflicting predictions. It is currently impossible to predict specific climate changes, if any, from the world's CO2 emissions. Thus, it is beyond nonsensical to charge that certain states will suffer adverse consequences from the carbon dioxide releases of five companies.

Winston has a nose for nonsense. He may not be able to smell CO2 but he sure can smell PR.

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