States Seeking To Force EPA Decision May Stall Real Progress On Environmental Issues

In an attempt to force a quick decision rather than wait for a full investigation into the issue and a release of agency guidelines, the Attorneys General of four states have announced they are prepared to file suit against the Environmental Protection Agency seeking waivers that would allow the states to set their own automobile emissions standards.

However, Houston attorney Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP, predicts that this type of overreaching litigation will only serve to fan the fire for more litigation, making real progress more difficult to achieve. “This brings to mind Steven Spielberg’s movie ‘Poltergeist’ – they’re here and they know what scares you,” he says.

Mr. Faulk adds, "The march of the ambitious attorneys general continues, and more are rushing to join their ranks. After all, why wait for the EPA to do what the 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? Let's just go to court instead. After all, that's where lawyers can really make a difference, isn't it? With an all too increasing frequency that’s where these ‘leaders’ are turning to when they want results – not to legislatures, not to agencies, not even to the voters, just to judges who they hope will rush in to resolve the issues that even the most enlightened scientists and regulators approach cautiously.”

The prototype for this type “public nuisance” form of aggressive climate change policy was spawned in Rhode Island v. Atlantic Richfield Co., says Mr. Faulk. “The result sought by the attorneys general here is no less sweeping than what was sought by the lead paint plaintiffs' bar in the Rhode Island case. Indeed, 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 or to squelch legitimate deliberations by a federal regulatory agency, as these lawsuits portend, 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,” he says.

"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,” he predicts.

"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 indeed, our fundamental freedoms from those who pursue oppressive enforcement and predatory litigation."

Mr. Faulk will co-host the Webcast "Stormy Weather Ahead? The Legal Environment of Global Climate Change," on Oct. 29, 2007. The Webcast is sponsored by the Washington Legal Foundation. For more information on the event, visit www.wlf.org.

Gardere Wynne Sewell LLP, an AmLaw 200 firm, was founded in 1909 and is one of the Southwest’s largest full-service law firms. With offices in Austin, Dallas, Houston and Mexico City, Gardere provides legal services to private and public companies and individuals in areas of energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.