AUTOMAKERS WIN ONE IN CALIFORNIA

Unlike the disaster in the U.S. District Court for Vermont last week, the automakers have snatched a victory in the Northern District of California. Federal District Judge Martin Jenkins (who, by the way, like Vermont's William K. Sessions, III, is another Clinton appointee) has dismissed the California Attorney General's pirate raid against the six major automakers for monetary damages for "climate changing greenhouse gasses."

In California v. General Motors, Judge Jenkins properly held that State had failed to state a justiciable claim against General Motors Corp (GM). Toyota Motor North America, Inc., Ford Motor Co. (F), American; Honda Motor Co., Inc, DaimlerChrysler Corp. and Nissan North America, Inc.

The California Attorney General had claimed that carbon dioxide, nitrous oxide and other greenhouse gasses were a:

"(1) public nuisance under federal common law; and, alternatively, a

(2) public nuisance under California Law, California Civil Code § 3479, et seq. and California Civil Code § 731."

Such claims, of course, are wildly unprecedented. Seeking another windfall similar to the infamous "tobacco settlement," the California Attorney General demanded millions in monetary damages, attorneys’ fees, and a declaratory judgment for future monetary expenses and damages incurred by the State of California in connection with the "nuisance" of global warming.

The automakers moved to dismiss this junk lawsuit on four grounds:

(1) the entire case raises nonjusticiable issues properly reserved for resolution by the political branches of government;

(2) the complaint fails to state a valid nuisance claim under federal common law;

(3) the complaint fails to state a valid nuisance claim under California law; and

(4) the nuisance claim under California law is preempted by federal law.

Judge Jenkins correctly found that "Resolution of Plaintiff’s federal common law nuisance claim would require this Court to make an initial policy decision." Judge Jenkins relied on Connecticut v.American Electric Company, Inc. (AEP), 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005) -- a case where crusading attorneys general were attempting to beat down electric utilities on an analogous nuisance theory (albeit apparently without the piracy angle). Judge Jenkins observed from the AEP decision: "As the EPA has stated:
'It is hard to imagine any issue in the environmental area having greater 'economic and political significance' than regulation of activities that might lead to global climate change. . . . Unilateral [regulation of carbon dioxide emissions in the United States] could also weaken U.S. efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies. 68 Fed. Reg. at 52931.'"

"Unavoidably, climate change raises important foreign policy issues, and it is the President’s prerogative to address them. 68 Fed. Reg. at 52931. Virtually every sector of the U.S. economy is either directly or indirectly a source of [greenhouse gas] emissions, and the countries of the world are involved in scientific, technical, and political-level discussions about climate change. 68 Fed. Reg. at 52928. Id."

Judge Jenkins then concluded "the Court finds that the same justiciability concerns predominate and significantly constrain this Court’s ability to properly adjudicate the current claim. Regardless of the type of relief sought, the Court must still make an initial policy decision in deciding whether there has been an 'unreasonable interference with a right common to the general public.'"

Next, after recognizing the central, predominant role of Federal standards for both exhaust emissions and fuel economy, Judge Jenkins did what Judge Sessions should have:

"[T]he Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government."

AMEN!

The Court further reasoned:

"A judicial determination of monetary damages for Plaintiff’s global warming nuisance tort would improperly place this Court into precisely the geopolitical debate more properly assigned to the coordinate branches and would potentially undermine the political branches’ strategic choices by 'weaken[ing] U.S. efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies.'"

In other words, Judge Jenkins reasoned that a court-imposed policy which would have indirectly resulted in a unilateral limitation on greenhouse gasses would undermine the international bargaining position of the Federal government.

Why would emerging greenhouse gas "powers" such as the People's Republic of China and India give up anything if the U.S.A. had nothing left to "trade?" Judge Jenkins correctly recognized that such calculus (to the extent it is otherwise constitutional) is properly within the purview of the political branches of government.

Judge Jenkins also relied upon Massachusetts v. Environmental Protection Agency,127 S. Ct. 1438 (2007), but, unlike Judge Sessions, to achieve a result more favorable to the automakers. Judge Jenkins reasoned:

"Underpinning the Supreme Court’s standing analysis is the concept that the authority to regulate carbon dioxide lies with the federal government, and more specifically with the EPA as set forth in the CAA. Also inherent in the Supreme Court’s reasoning is the principle that any State that is dissatisfied with the federal government’s global warming policy determinations may exercise its 'procedural right' to advance its interests through administrative channels and, if necessary, to 'challenge the rejection of its rulemaking petition as arbitrary and capricious.'"

Accordingly, Judge Jenkins properly concluded "Because the States have 'surrendered' to the federal government their right to engage in certain forms of regulations and therefore may have standing in certain circumstances to challenge those regulations, and because new automobile carbon dioxide emissions are such a regulation expressly left to the federal government, a resolution of this case would thrust this Court beyond the bounds of justiciability."

Judge Jenkins further reasoned that "Plaintiff’s claim implicates a textually demonstrable constitutional commitment to the political branches." This reasoning expressly rejected the California Attorney General's ridiculous claim that the "environmental nuisance claim is committed to the federal judiciary and has no import on interstate commerce or foreign policy."

"In this case, by seeking to impose damages for the Defendant automakers’ lawful worldwide sale of automobiles, Plaintiff’s nuisance claims sufficiently implicate the political branches’ powers over interstate commerce and foreign policy, thereby raising compelling concerns that warn against the exercise of subject matter jurisdiction on this record."

Judge Jenkins additionally found that "There is a lack of judicially discoverable or manageable standards by which to resolve Plaintiff’s claim." Judge Jenkins astutely concluded the "Court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the Earth’s atmosphere, or in determining who should bear the costs associated with the global climate change that admittedly result from multiple sources around the globe."

However, the victory for the automakers was not absolute. Judge Jenkins recognized that the California Attorney General could take another shot under California state law in state court. Moreover, an appeal to the somewhat unreliable 9th Circuit Court of Appeals is possible.

Still, given the potential damage that such bogus "nuisance" actions could cause, the dismissal of the California Attorney General's "pirate raid" lawsuit is good news indeed.