TCS Daily


Truly a 'Nuisance Suit'

By Duane D. Freese - July 22, 2004 12:00 AM

Thank you, Eliot Spitzer of New York.

Thank you and your crew of fellow state attorneys general from Connecticut, Vermont, Rhode Island, California, New Jersey, Iowa and Wisconsin, plus the office of New York Mayor Michael Bloomberg. Thank you all for filing your absurd lawsuit against five energy companies for their emissions of carbon dioxide.

It isn't a matter of agreeing with your lawsuits' premise, or anything like it, that leads to this gratitude. The suit is scientifically flawed and legally spurious, which is a good thing because it would have economically disastrous consequences if it had any real chance at success.

No. The thanks is for demonstrating for all to see how foolish Congress and the federal government would be to ever give power-grabbing state AGs real grounds for a lawsuit by passing any legislation capping CO2 emissions. Setting emissions caps would do nothing to help global climate, but do great damage to this nation's economy and its wherewithal to withstand the heat, snow, cold, hurricanes, floods, tornadoes and earthquakes, all the calamities this planet is heir to.

Congress recognized the dangers to the U.S. economy of emissions curbs, especially of CO2, when it voted unanimously in 1997 that it would not approve any international climate accord that didn't involve all nations and would cost the U.S. economy too much.

Knowing the Kyoto protocol negotiated that year by his vice president, Al Gore, couldn't meet those strictures was the key reason President Clinton never submitted it to Congress for approval. Studies by that administration's own energy department -- indicating a $300 billion annual cost to the U.S. economy for meeting Kyoto's targets with nil effect on climate -- underlay President Bush's decision to withdraw from the Kyoto process as "fatally flawed." And the economic pain for no climate gain also underlay the U.S. Senate's rejection of a domestic Kyoto-lite, the McCain-Lieberman climate control act last year, although Sens. McCain and Lieberman continue to try to bring it up.

As Margo Thorning, chief economist of the American Council on Capital Formation noted during the debates about Kyoto, one reason European countries and others so readily signed on to the protocol was that, for them, it would have no real legal teeth.

Developing countries, such as China and India, which will produce the most greenhouse gases in the decades to come, have no obligation to do anything about their emissions. They, in effect, would be able to increase their pollution by taking up more manufacturing jobs from developing countries that actually cut emissions, because a key way to reduce emissions is simply to stop the manufacturing and power generation that produce them.

As for Europe, Thorning pointed out that its bureaucracy, unlike the United States', has the flexibility to let businesses off the hook if they don't meet their emissions goals; here, passage of Kyoto would have not only provided a mandate for bureaucrats, but a cause for private groups and state attorneys general to sue.

In short, Kyoto really only threatened jobs in the United States. It was a beggar thy American neighbor environmental policy in the hands of Europe and Third World countries with little real obligation to do anything.

Some of the states doing the suing in Spitzer's ludicrous case are following the same course. New York, for example, gets the bulk of its energy thanks to the fortuitous circumstance of the St. Lawrence seaway and Niagara Falls, plus a heavy dose of nuclear power. Only 16 percent comes from coal fired generation, which is the source for 54 percent in the United States generally. California is a natural gas, nuclear and imported hydropower state; Rhode Island, Vermont, New Jersey and Connecticut, too, rely little on coal.

They figure their citizens will be unaffected if their badgering leads to tighter emission controls, higher energy costs, more closed factories and fewer jobs in the states, such as Ohio, West Virginia, Tennessee, Kentucky, Indiana, etc., where the coal-fired plants provide the bulk of power.

Iowa and Wisconsin, though, should look in the mirror. Iowa gets 83 percent of its electric power from coal; Wisconsin, 68 percent. The attorneys general there could make a bigger contribution to a reduction of CO2 if they would just get their businesses and citizens to turn off their electricity -- permanently.

That's a joke, of course. But, then, so is the lawsuit. It doesn't seek any damages, because it can't quantify any. It is truly "a nuisance suit" - a nuisance to the companies against which it is lodged and the economy, which it would only make worse.

As Senior Fellow H. Sterling Burnett of the National Center for Policy Analysis noted, "To satisfy traditional notions of nuisance, CO2 would have to pose a health threat, which it does not at any foreseeable level. CO2 is a naturally occurring gas, not a pollutant."

Indeed, the lawsuit amounts a lot of naturally occurring gas as well. The naturally occurring hot air from a group of wannabe governors grabbing headlines and attention for themselves.

Good, intelligent, public officials wouldn't play games with the nation's electricity supply. Spitzer should know better, considering the blackout New Yorkers endured last summer. He shouldn't try to visit that on the rest of America.

So, thank you, Eliot. By going this frivolous route, you've shown how dangerous more power in your hands would be. But you owe a debt of thanks to Congress; without its rejection of Kyoto and McCain-Lieberman, you might actually have grounds for a suit, and then your hot air would have cooked your political goose.


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