Children v. Dirty Business

by William S. Becker

On May 11, a group of children will face off against the Obama administration and the National Association of Manufacturers for the latest round of a David vs. Goliath battle in federal court.

The kids filed a lawsuit last year against the administration, arguing that common law requires governments to protect critical natural resources on behalf of current and future generations. In this case, the kids argue, the government has an inherent duty to protect the atmosphere from greenhouse gas emissions, and all of us from the impacts of global climate change.

In their lawsuit, a group called Our Children's Trust filed against a who's who of administration officials including EPA Administrator Lisa Jackson, Interior Secretary Ken Salazar, Agriculture Secretary Tom Vilsack, Commerce Secretary Gary Locke and Energy Secretary Steven Chu.

Earlier this month, U.S. District Judge Robert Wikins ruled that the National Association of Manufacturers (NAM) and several California businesses could intervene against the kids, based on the argument that limiting greenhouse gas emissions would lead to a "diminution or cessation of their businesses" -- in other words, jeopardize their profit margins.

Now, NAM and the administration have asked the judge to dismiss the case. That's the motion to be considered in May.

Blogger Ben Jervey has done a good job describing the lawsuit's background, including who the kids are and why they're doing this, so I won't go into it here. But I am curious about an argument attributed to one of the attorneys for the businesses, that companies have a "legally protected cognizable interest to freely emit CO2."

Of course, what is legal is not necessarily moral, but morality is the province of the clergy, not the courts. More to the point, it would seem that the public -- present and future -- has a "cognizable interest" to live without the natural disasters, health hazards, humanitarian tragedies and threats of war that are the likely results of climate change and that already are in evidence today.

Further, as unofficial co-plaintiffs in this case, we might all point out that while companies can resolve this problem by installing better emission controls, or using cleaner fuels, or changing the nature of their operations, the damages from greenhouse gas emissions are not so easily avoided. In fact, scientists tell us that some of the damages are irreversible.

At the heart of this case, it seems to me, is not whether current law permits corporations to willfully alter the atmosphere with their wastes. If we depend solely on political bodies to protect the climate, for example, then we will politicize the atmosphere as well as polluting it. The health of oceans, forests, fresh water supplies and soils -- and consequently human beings -- all will be subject to the whims and prejudices of politicians.

The real issue is whether the health of the natural systems and resources that all of us "own" is protected by a doctrine that transcends the interests of any one industry, the statutes of any one Congress, the actions of any administration, or the abdication of responsibility by any of them.

As a 65-year-old, I must admit some embarrassment that our children now feel obligated to face off against the giants of industry and government and all their lawyers. These kids are stepping in where their elders in Washington and the international community have feared to tread.

But it's also heartening and none too soon. What could be established as a result of this lawsuit is that protecting a global life-support system from irreparable harm is a higher priority than corporate profits -- profits derived in part from making the rest of us pay the god-awful price of greenhouse gas emissions. It's our kids who will have to live with the court's ultimate decision, but it's in the interest of all of us for Judge Wilkins to allow the lawsuit to proceed.

LABELS: BILL BECKER, BUSINESS, CHILDREN, CLIMATE CHANGE, ENVIRONMENT, EPA, GLOBAL WARMING,LAW, NAM, OBAMA ADMINISTRATION, OUR CHILDREN'S TRUST