Con: Bill gives trial lawyers a license to raid treasury

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Andrew P. Morriss
October 25, 2007
— Guess who’s coming to save us from global warming?

Not EPA, not the Energy Department, not even Al Gore, but the nation’s lawyers.

Rep. Henry Waxman, D-Calif., and more than a dozen other members of the House want to let individuals sue the federal government for not reducing its own greenhouse gas emissions, and collect up to $1.5 million a year for “beneficial mitigation projects” to offset global warming.

This astounding invitation to interest groups and lawyers to help themselves to taxpayers’ money is tucked away in the innocuously titled “Carbon Neutral Government Act of 2007.”

Waxman’s giveaway has three parts. Part 1 sounds innocent enough—a series of mandates for government agencies annually to inventory and report their greenhouse gas emissions, benchmark buildings’ energy efficiency, and conduct a host of studies; EPA-created targets for federal agencies to reduce their emissions; permission for federal agencies to buy greenhouse gas “offsets,” and the like.

But the carbon-offset part is problematic—there are no reliable standards yet to determine when money actually buys something that reduces carbon and when it just ends up in someone’s pocket.

An investigation by Britain’s respected Financial Times revealed “widespread instances of people and organizations buying worthless credits that do not yield any reductions in carbon emissions,” “brokers providing services of questionable or no value,” and other problems. Throwing federal money into this market seems a lot like sending sheep to be shorn.

Despite the problems, Waxman’s bill will have agencies scrambling to buy offsets. And when they do, agencies’ spending on carbon offsets will not be a separate line in the federal budget but scattered throughout.

This reduces the chance that taxpayers might ask annoying questions about why, for example, the Equal Employment Opportunity Commission has started spending money on planting trees instead of on investigating discrimination complaints or why the Department of Veterans Affairs is subsidizing wind farms instead of paying for veterans’ medical care. Hiding these expenditures throughout the federal budget will help conceal the magnitude of the transfers to the growing carbon offset industry.

Part 2 of Waxman’s plan makes sure the agencies buy the offsets by authorizing virtually anyone to sue the government for “harm” caused by any “federal agency’s failure to reduce its greenhouse gas emissions” as required by the law.

How might the Social Security Administration’s greenhouse gas emissions hurt you?

The bill defines harm extraordinarily broadly: “any effect of global warming, currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with relatively small increments of greenhouse gas emissions, even if the effect or risk is widely shared.”

What do you get if you win? Cash, which can “be used for a beneficial mitigation project recommended by the plaintiff or to compensate the plaintiff for any impact from global warming suffered by the plaintiff.”

While the current bill limits these payments to a total of $1.5 million a year, it’s hard to escape the suspicion that if this bill passes, that limit will rapidly increase.

Part 3 is the clincher: the plaintiff can collect attorneys’ and expert witness fees. Estimates of attorneys’ fees paid to environmental pressure groups in a series of cases involving missed deadlines under the Endangered Species Act total millions of dollars since the mid-1990s. This bill has the potential to make the ESA fees look like small change.

Putting these three parts together, it becomes clear that Waxman’s “Carbon Neutral Government Act” would be more honestly titled the “Sue the Government Act.”

It would be a great thing if the federal government did less harm to the environment. Unfortunately Waxman is proposing giving lawyers a license to raid the federal treasury over actually stopping the government’s harmful activities.

Andrew P. Morriss is the H. Ross & Helen Workman Professor of Law at the University of Illinois College of Law. Readers may write him at UI College of Law, 504 East Pennsylvania Ave., Champaign, Ill. 61820.

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