"Public nuisance, spawned in RI and pursued elsewhere, is prototype for aggressive climate-change policy," Richard O. Faulk observes

Today was a double-header:

• California Attorney General Jerry Brown announced the 4-state federal lawsuit against the federal EPA about vehicular greenhouse gas [GHG] emissions, and

• Tort reformers have been preparing for the US Chamber of Commerce Institute for Legal Reform's Summit tomorrow on state attorneys general. THere will be a live webcast at http://www.uschamber.com/webcasts.  At the Summit, at 9:00 AM, the ILR will be releasing its Code of Conduct for state AGs. Complimentary copies of that ILR Code of Conduct are available from MGenova981@aol.com.  For further information please contact Ryan Zempel, Managing Editor - ILR, RZempel@usachamber.com.

Given these two key developments, I scurried around for an expert to help us make sense of what's going on in CA and what AGs should be pursuing instead of climate-change litigation, federal and state.

I got lucky, right off.  Richard O. Faulk, whose law firm Gardere Wynne Sewell now has a practice in climate change, agreed to talk on the record.  Richard's latest white paper on climate change is available at www.gardere.com, under "attorney bios."

**********************************************************************************************************************

Richard O. Faulk discusses climate change and state attorneys general, on the record:

"Steven Speilberg got it right in his horror movie 'Poltergeist' - 'They're here - and they know what scares you!'

"The march of the ambitious attorney general continues - and more are rushing to join the ranks.  After all, why wait for the EPA to do what the US Supreme Court ordered it to do in Massachusetts v EPA?  Why wait for a measured and scholarly and rational debate - a discussion where all sides will be fairly represented and all options fairly considered? Indeed, why wait for the democratic process at all? Who needs it? And that's where real leaders turn when they want results - not to legislatures, not to agencies, not even to the voters - just to judges who will supposedly rush in to resolve issues even the most enlightened scientists and regulators approach cautiously.

"Make no mistake about it: The public nuisance phenomenon spawned in Rhode Island and pursued elsewhere is the prototype for aggressive climate change policy. [White papers on public nuisance can be downloaded here from Gardere Wynne Sewell website, click on "attorney bio."] The result sought by California Attorney General Jerry Brown and his colleagues is no less sweeping than that sought by the lead paint plaintiffs' bar.  In essence, it reduces lead paint litigation to a mere symptom of the problem - a problem that encompasses a massive push by ambitious public counsel to coerce dramatic social change and gargantuan transfers of wealth without the traditional safeguards guaranteed by the American political process.

"Whether the goal is to bypass regulatory enforcement through questionable alliances of public and private counsel - as in the Santa Clara and Rhode Island cases - or to squelch legitimate deliberations by a federal regulatory agency - as AG Brown's lawsuit portends - the desired results are the same.  The 'bully pulpits' are mobilized to pursue precipitous action - and the uninformed enterprises they selectively target face risks limited solely by the enforcers' ambition and imagination.

"While the continuing debate on the science of climate change is likely to continue, it appears that some politicians and advocacy groups are no longer truly interested in science.  The debate has now shifted to what should be done, how fast regulations can be implemented, and which 'recalcitrants' should be sued.  These lawsuits are 'shots across the bow' of every American business - and more litigation is frankly inevitable as ambitious politicians and entrepreneurial advocates lose patience with bureaucrats and legislatures.

"As we have emphasized in our recent publications regarding climate change, businesses urgently need to understand their carbon dioxide posture/portfolio and must prepare promptly to minimize risks and to take advantage of opportunities.  Just as surely, those enterprises and the politicians who remain loyal to traditional deliberative values, must work to protect themselves, their customers and constituents, and our fundamental freedoms for those who pursue oppressive enforcement and predatory litigation."

************************************************************************************************************

Information about Gardere Wynne Sewell's climate-change practice is available from Richard O. Faulk, Rfaulk@gardere.com, 713-276-5651, 713-4087023 (cell)