State's Climate Suit Tossed

By Dale Kasler
The Sacramento Bee

Tuesday 18 September 2007

Judge's ruling curbs the fight against carmakers over global warming.

California officials suffered a setback in their global-warming dispute with major automakers Monday, losing a lawsuit that sought millions of dollars from the manufacturers for their vehicles' carbon dioxide emissions.

A federal judge in San Francisco tossed out Attorney General Jerry Brown's suit, which said the world's six largest automakers should share the blame for the shrinkage of the California snowpack and other environmental woes caused by global warming.

U.S. District Judge Martin J. Jenkins ruled that the issue must be left to legislators. "Policy decisions concerning the authority and standards for carbon dioxide emissions lie with the political branches of government, and not with the courts," he wrote. He also said it would be nearly impossible to calculate how much of the blame for climate change should be pinned on the carmakers.

His decision silences one of California's weapons in its ongoing fight over global warming with General Motors, Toyota and the other big automakers. The manufacturers had argued that the lawsuit represented a backdoor attempt to use litigation to clamp down on greenhouse gases.

"This ruling eliminates one key effort by California to try and regulate global warming through the courts," said Theodore Boutrous Jr., the automakers' lawyer in Los Angeles.

Noting that automakers lost a key ruling in a different global warming case last week, he said: "We won one - this is good."

State officials, who are mulling an appeal, said the ruling effectively leaves California at the mercy of the Bush administration, which they believe is unsympathetic to the state's efforts to combat climate change.

The state needs Bush administration approval to enforce its other big weapon, a law signed by then-Gov. Gray Davis that requires automakers to cut emissions of greenhouse gases 30 percent by 2016. The law, AB 1493, is due to start taking effect next fall with the arrival of the 2009 models.

That law is under attack by automakers in the courts. California won a key ruling last week when a federal judge rejected the automakers' challenge to a copycat law in Vermont.

Legal experts say the ruling increases the likelihood that California's own law will survive a similar challenge brought by automakers in U.S. District Court in Fresno. The automakers say AB 1493 will force them to make smaller, more fuel-efficient cars and will raise manufacturing costs by thousands of dollars per vehicle.

Even if AB 1493 withstands the legal challenges, though, California officials would still have to get a waiver from the U.S. Environmental Protection Agency before it can begin enforcing it.

The EPA has said it likely will rule on the request at year's end. But California officials, who applied for the waiver nearly two years ago, doubt an approval is forthcoming.

"The Bush administration has not acted on these issues in a way that makes us comfortable," said Deputy Attorney General Kenneth Alex.

State officials say the Bush administration didn't even begin taking the waiver request seriously until the U.S. Supreme Court, ruling in a different case last spring, declared that the EPA has the responsibility to regulate greenhouse gas emissions. The state says it will sue the EPA if it doesn't grant the waiver by Oct. 25.

Brown has been crusading on climate change since becoming attorney general in January. Wading into land use and development, he recently announced a settlement under which San Bernardino County agreed to measure the impact of its long-term growth blueprint on global warming. He is taking a look at the proposed Placer Vineyards development west of Roseville.

He also recently obtained a settlement that requires ConocoPhillips to spend $10 million to offset greenhouse gases emitted by a proposed expansion of its Bay Area refinery.

The wrangling over tailpipe emissions centers on one of the key contributors to global warming: California regulators believe that passenger vehicles account for roughly 30 percent of the state's greenhouse gas emissions.

In September 2006, Brown's predecessor Bill Lockyer sued the six largest automakers - GM, Chrysler, Ford and the U.S. units of Honda, Toyota and Nissan - on grounds that they have helped create a "public nuisance." The suit said global warming has been worsening California's urban air pollution and increasing the threat of wildfires, among other things. It sought unspecified millions of dollars in damages.

But Jenkins wrote that awarding damages "would punish defendants for lawfully selling their automobiles both within California, and outside of California in the global market."

The judge also said the lawsuit could undermine the federal government's foreign policy position - namely, the Bush administration's opposition to the Kyoto Protocol on climate change.

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