Memo to Texas, Alabama and Nebraska: Mind your own pollution!

Guest blogger Bill Becker is Executive Director of the Presidential Climate Action Project.

No to Proposition 23!A new poll in California indicates a dead heat among that state’s voters on Proposition 23, the ballot initiative in which out-of-state oil companies are trying to cripple the nation’s most progressive law to combat global climate change.

That law is AB 32.  Proposition 23 would stall its implementation. In the event voters decide to keep AB 32 intact, the attorneys general of at least three states — Texas, Alabama and Nebraska — say they’re ready to sue California to kill it.  In effect, the three AGs want to prove it’s unconstitutional for a state to decide it won’t purchase dirty energy – for example, coal-fired electricity — from somewhere else.

California’s voters would be justified defeating Proposition 23 just to send a message to outside agitators to mind their own damn business.  After all, California’s people and their economy have a lot to lose from climate change, including water shortages, wild fires and sea-level rise along the state’s 840 miles of coastline.

For the rest of us, the derailment of AB 32 would be another major loss to the carbon lobby in a year of depressing policy defeats, first in Copenhagen, then in Congress.  By default, the world’s hope for climate leadership from the United States now rests with state and local governments.  Partly as a result of California’s example, more than 30 states are implementing or creating their own climate action plans. The Nov. 2 election, including the outcome of Proposition 23, will affect the political climate for climate action well beyond California.

The derailment of AB 32 would also be a serious blow to representative government.  The bill was passed with bipartisan support in the California legislature and signed into law by Republican Gov. Arnold Schwarzenegger. It’s an example of how government is supposed to work. The only thing wrong with the law is that Congress hasn’t already passed something like it.

Opponents of AB 32 have gathered more than $8 million to promote Proposition 23. At last count, about $5.5 million came from Valero Energy Corporation and Tesoro Corporation, two oil companies based in San Antonio, Texas. A Kansas petroleum company owned by Charles and David Koch, the libertarian billionaire brothers who reportedly have helped fund the Tea Party movement,  contributed $1 million.

The good news, insofar as money is a proxy for votes, is that environmental groups and green entrepreneurs are fighting back. Grist reports they have contributed more than $11 million so far to defeat Prop 23.

Both sides seem to recognize that Prop 23 is a vote on who controls government: the people’s elected representatives or the oil and coal industries. That question already has been decided in Congress, where the carbon lobby is in control.

The oil companies behind Prop 23 will argue that citizen referenda are a legitimate instrument of democracy, too.  But just in case, the industry has a backup plan in the threat from the three attorneys general: They will use the courts to defy the will of the voters.

The three AGs should keep two things in mind. The first is President George W. Bush’s lament in April 2008, during a Rose Garden speech on climate change:

Decisions (on climate action) with such far-reaching impact should not be left to unelected regulators and judges. Such decisions should be debated openly and made by the elected representatives of the people they affect.

Second, litigation can cut both ways.  Legal battles over climate policy are opening interesting avenues in the courts, some of them described by Mother Jones last spring in an article about “The Coming Tide of Climate Lawsuits”.

Victims of sea-level rise in Alaska are using nuisance laws to sue 19 big oil companies including BP America and ExxonMobil on grounds their products are causing some Alaskans to lose their homes and villages.

Last June, a federal appeals court ruled that landowners on the Gulf Coast had standing to seek damages against 32 energy and chemical companies whose activities allegedly contributed to global climate change and the intensity of Hurricane Katrina. Their lawsuit ran aground in the court system, but according to media reports could still end up in the Supreme Court.

Last January, Micronesia filed legal action against one of the dirtiest power plants in the Czech Republic, 8,000 miles away, under the principle of “transboundary harm”. It’s conceivable the same principle could be used against entities in the United States that by commission or omission are contributing to climate change.

What’s at stake?  Wired Science, citing a “forthcoming United Nations study”, says the world’s 3,000 biggest public companies could be liable for $2.2 trillion, more than 30 percent of their profits, if they were required to pay damages for their carbon emissions.

In other words, we are seeing the emergence of “climate tort” – the idea that carbon polluters are legally and financially liable for damages related to climate change. The Wall Street Journal calls this development  “one of the most destructive mass litigation theories ever devised”.  It calls climate tort lawsuits “naked political intimidation meant to coerce cap and tax or some other expensive carbon crackdown regardless of what Congress wants.”

Which brings us back to President Bush’s lament that courts are doing what elected leaders are supposed to do. It’s a shame the biggest winners of the climate battle may be lawyers.  But that’s the litigious world the carbon lobby has created by opposing progressive state and federal climate policies. It may come back to bite them.

— Bill Becker

JR: Here are five things you can do to win this fight:

  1. Visit the “No on 23″³ website, learn the facts & sign up:
  2. Educate yourself on how California’s climate & energy laws have created companies & jobs:
  3. Tell your friends by email, on Facebook, at work, & everywhere else.
  4. Participate in the debate. Write letters to the editor and post comments on blogs & websites.
  5. Contribute (click here). The other side’s leader, right-wing California Assemblyman Dan Logue, has publicly said he expects the oil companies to spend $50 million.

10 Responses to Memo to Texas, Alabama and Nebraska: Mind your own pollution!

  1. mike roddy says:


    What is the likelihood that the three AGs’ lawsuit can prevail in court?

    As for the suits from coastal Alaskans who are overwhelmed by climate change, we’ve got a little problem here: the Supreme Court. They have made it clear that the rights of corporations trump everyone else. Also, if they are going to sue for damages, Peabody and Southern have caused more CO2 emissions than Exxon and BP, so they need to add their names to the suit.

    Because of our corrupted justice system, I believe that product boycotts and actions such as the recent protest in front of the White House will be required, and on a much larger scale.

  2. Steve Bloom says:

    Equal? The most recent poll (Field) shows 23 losing.

  3. Cinnamon Girl says:

    “What is the likelihood that the three AGs’ lawsuit can prevail in court?”

    Probably none, to nearly none, but of course we don’t know what whacked out claims the goofball AGs would try to make. Abbott of Texas already has shown willingness to waste taxpayer money on frivolous suits against the EPA, probably to further his political career, so there’s no telling what junk he would try. From the TX point of view, I wouldn’t be surprised if the already-approved large west Texas wind power project has something to do with the angst. “Hey Abbott!” Stop wasting taxpayer dollars on frivolous lawsuits!

  4. Rick Covert says:

    What can I say. I’m ashamed that our Texas AG is talking about suing California for implementing its forward thinking greenhouse gas reduction law.

  5. Chris Winter says:

    That Wall Street Journal article warns of what it calls a troubling twist: “green plaintiffs may have found a way to handpick sympathetic judges.”

    And it’s drawn 33 comments so far — all protesting the ominous threat of litigation based on what they still call a hoax.

    Funny how they bleat when it looks like the shoe is on the other foot.

  6. PurpleOzone says:

    Yesterday, Keith Olbermann featured a long clip of Schwarzenegger’s speech against the fuel companies funding the ads for Prop 23. He cited Valero, Tesero and the Koch brothers. (I’m not such Tesero is right; the Governor mispronounced Koch phonetically, rather than ‘coke’.)

    Schw. jeered at the notion that Texas oil companies were concerned about jobs in California. Said they were about ‘greed’. Great speech. It’s had no national coverage, save for Keith. See it on his web page.

  7. climacs says:

    Despite the office of the North Dakota Attorney General saying that “North Dakota is not currently contemplating litigation against the State of California”, it is worth again mentioning that the state is considering comparable litigation against Minnesota and that the ND state legislature set aside $500,000 for that purpose.

    Furthermore, though “North Dakota” may not right now be considering suing too, from the reporting by Mark Schapiro, personally ND AG Wayne Stenehjem hopes Prop 23 passes in CA and particularly if it does not is thinking about being involved in a suit against California. Obviously Stenehjem would engage in that activity under the mantle of “North Dakota”.

  8. Whatshisname says:

    Big Oil in Texas may be throwing a Hail Mary because there is a discernable shift in political power down here. Bill White may not win the governor’s race, but his poll numbers suggest this election is about something more than just the Spike Dykes Rule (“People get tired of you at the rate of ten percent a year”). Despite the absence of a loyal opposition in Texas’ daily press, the revelations about the Koch Boys have not fallen on deaf ears. Their and Gov. Perry’s Champagne Cowboy act offends sensibilities. BP’s arrogance is having the same effect, especially the way it treats Texas City residents like disposable paper cups, creates orphans and sickens them with chemical plagues. As a result, we are witnessing the remarkable case of Texas Land Commissioner Jerry Patterson who is still kicking Exxon in the shin for ripping off small landowners. We’ve also seen the unexpected rise of the Texas Cities for Clean Air Coalition, which turned back Rick Perry’s bid to fast track coal burning power plants. Some people viewed that as a win for Big Oil, but it also reflects a gut feeling among Texans who are afraid to jump in the old fishing hole back at their childhood home.
    By the way, watch for voter fraud in the governor’s election, especially in El Paso. You can bet Karl Rove already fears El Paso could decide the election for White and upset Perry’s plans to run for President.

  9. Bruce Post says:

    “By default, the world’s hope for climate leadership from the United States now rests with state and local governments.”

    I hope your confidence in state and local governments proves correct. But, as a local Selectboard member in Vermont’s second largest community, I am a bit less confident. We have been grappling with revising our open burning ordinance, and incredibly, the majority of our board seems to want to weaken it. Our Chair, also a state legislator, loves “tradition” and wants to preserve campfires, even in densely-populated neighborhoods, and other burning because, as she says, “I love campfires, and I have asthma!” So, we will officially sanction one set of neighbors polluting another set of neighbors.

    Sure, there are so-called tough penalties for violating the provisions, but there are no real, measurable standards for how to determine a violation, just vague references. This would leave our police with no definite standards to enforce; thus, despite what on paper might look tough, we will actually have an ordinance that is toothless. Fortunately, our town seems to be an anomaly; other surrounding communities have tougher standards.

  10. mike roddy says:

    Whatshisname, “Champagne Cowboy Act”- classic!

    Keep fighting down there in Texas. Progressives who are getting run over in states like Kansas and Utah just give up.