Let's Sue 'Em
On Wednesday, California Attorney General Bill Lockyer filed a lawsuit against Ford, Chrysler, General Motors, Toyota of North America, Honda of North America and Nissan North America. The lawsuit alleges that emissions from vehicles manufactured by these companies have created a public nuisance which has caused quantifiable damages to California residents.
I spoke with Deputy Attorney General Harrison Pollak about this lawsuit. Pollak is an attorney working on the case. He works in the Environment Section of the Public Rights Division in the Office of the California Attorney General. I asked Pollak if the state was going to seek damages. "Yes!," he replied, "Exactly right. That is all we seek. Well, we are also seeking a declaration that the auto companies are liable for present and future damages resulting from emissions of greenhouse gasses from their vehicles."
When I asked him how these damages could be quantified, he explained, "There are costs involved in studying issues such as the economic consequences of the loss of snow pack in the mountains and the health threats from heat waves. We will have economists and other experts quantify these costs." He went on to say, "There is $40M in the state budget this year allocated to dealing with the effects of global warming. This type of expense can be directly associated with emissions such as those described in the lawsuit."
I asked Pollak if his office really thought the state could win. "We do!" he replied enthusiastically, "Public nuisance theory goes back hundreds of years. It has been used in environmental cases for more than a century. Part of the definition of a public nuisance is that it causes harm to life, health and property. In that sense, it is difficult to imagine something which would be more of a public nuisance."
Why just the car companies? Why not go after all sources of greenhouse gas emissions? Pollak had obviously pondered these questions prior to my asking, "You have to start somewhere. Car companies are huge contributors to global warming. Also, there is great potential to introduce better technologies into the transportation industry, but car companies have historically dragged their feet at every proposed advance in automotive safety or pollution control."
Finally, I asked him if electric vehicles were the only acceptable answer. His response was blunt. "It is not the focus of our lawsuit to find out what they can do to fix the problem. We want them to pay for the damage they have done. We are not saying what the answer is."
Fair enough. This reporter knows many people who are not afraid to offer answers to question regarding greenhouse gas emissions. One such person is Tom Gage, president of the electric vehicle company AC Propulsion. When I asked Gage about his opinion of the lawsuit, he was equally blunt. "To me, it is a typical deal with legislators who have no technical understanding. It’s not clear what Lockyer would have the car companies do instead. The only way to comply would be to generate all power through renewables."
He went on to explain how he thought real progress could be made. "The policy makers should be doing this. This should be done through the legislative branch, not the judicial branch."
Finally, he stated, "It does not reflect well on the environmental movement to support something like this. It does not address the crux of the issue."
Other environmentalists disagree. Gail Slocum, former mayor of Menlo Park and senior policy advisor to the electric vehicle advocacy group CalCars, brought up a good reason why such action should go through the judiciary rather than the legislature. "I’m encouraged to see the pressure being brought which could cause a sea change similar to what happened with tobacco litigation several years ago. The tobacco lobby was so firmly entrenched in Washington that the federal government would not or could not take any action against tobacco companies. However, when the litigators won a few cases, big tobacco gave up. Lawsuits like this could cause something similar to happen in the automotive industry."
CalCars founder Felix Kramer offered more support, although he was not overly optimistic about Lockyer’s chances of winning. "Even as a non-lawyer, I have to feel cautious about this lawsuit. I don't know if precedents apply, and it may be a difficult case to prove. But it's great to the extent that it motivates auto-makers to factor carbon dioxide emissions into their business models. Increasingly, car-buyers are asking for ‘environmental features’ in the face of critics who use traditional criteria for what is ‘economically viable.’ They and auto-makers are starting to recognize the negative global paybacks we get from cars. Of course the first company to start manufacturing a plug-in hybrid, with half the CO2 emissions of the equivalent car, merits a prize, not a summons."
Some experts feel that the lawsuit is just the beginning of an inevitable trend. Herman Trabish, publisher of the "New Energy News" blog, cheered the attorney general’s actions. "Lockyer is trying to be like Elliot Spitzer and more power to both. A settlement would do what Branson is trying to do with his three billion dollar gift this morning. It would begin making the biggest carbon burners a little more carbon neutral. Smart people know we've got to have a carbon tax, one way or another, because we've got to stop burning carbon."
Chelsea Sexton, Executive Director of the group Plug-In America, also approves of the lawsuit. "It is a very interesting development. I think it is an example of one more way this issue is being dealt with in the national conversation. It represents one more way theses issues are being addressed. The auto makers need to realize that consumers are focusing more on emissions. They need to respond to consumer demand and offer more choices and cleaner choices."
The last person I spoke with was Pete Nortman, president of EnergyCS, a company developing a conversion kit which turns a Toyota Prius into a plug-in hybrid. Nortman is not convinced that most people will support the attorney general's case. "The biggest problem is that I think many people could easily be persuaded to take the side of the auto companies on this because it is the status quo, even though it's not in their best interest to do so."
Despite his concerns, he offered support for people such as a Lockyer who challenge the status quo. "We need to make change, and to do this, we need to make courageous choices to live differently - live within nature instead of living off nature. Our western standard of living is built upon two things, plentiful and inexpensive energy, and science. Now science is telling us that we can't spend the energy at the rate we are doing it and remain sustainable. We need to respect our limits."
It is not surprising that knowledgeable people have widely varying opinions regarding not only the motivation for this hotly-debated lawsuit, but the possible outcome as well. Those of us who saw the California EV mandate come and go have grown skeptical to transportation solutions proposed by the government. However, most agree that this lawsuit has the potential to do some good, at least. I guess we will just have to wait and see.
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