Fox News Appearance, Australian Climate Legislation, U.S. & China Pre-Copenhagen Pledges & Remembering Tom Graff

On Monday November 23, I was quoted in an article in USA Today about climate change litigation in the wake of of the Fifth Circuit’s decision in the case of Comer v. Murphy Oil USA. After a widely-read conservative blogger attacked me on Tuesday for being quoted as saying that the litigation was “difficult”, I was invited to appear live on Fox Business News on Wednesday to discuss “green lawsuits”. I was interviewed from the Fox News studio in Washington by Stewart Varney, who was in New York. He apparently was not well-briefed on who I am because he accused me of being the inspiration for the lawsuits, which he claimed were mere “grandstanding” to undermine the political process. I noted that I was not involved in the litigation, but that throughout U.S. history citizens have turned to the courts when severe environmental problems emerged that were not being addressed by the regulatory system. He then bizarrely asserted that it was only my opinion that climate change had yet to be addressed by the regulatory system. Varney then argued that the U.S. should require unsuccessful plaintiffs to pay defendants’ attorneys fees (the English rule) in order to deter such “frivolous lawsuits” that clog the courts. I responded that more environmental lawsuits are brought by business interests seeking to reduce regulation than by environmentalists seeking to strengthen it and that our legal system is “the envy of the world,” as I well understand from my experience in China.

Watching the pre-Copenhagen debate it is striking how the climate change deniers have been trying to spin the purloined emails from the University of East Anglia and polls showing a decline in public support for cap-and-trade as somehow confirming that climate change does not exist. Actor Ben Stein, representing the deniers on CNN, claimed that they now represent the “truth lobby” rather than what James Carville called the “pollution lobby.” In light of the massive advertising campaign by opponents of GHG limits, a decline in public support for cap-and-trade is not surprising, but clear majorities in both political parties, and virtually all world leaders still acknowledge the importance of limiting GHG emissions.

Australia’s governing Labor party and the opposition Liberal party reached agreement this week on compromise legislation to cut GHG emissions by 25 percent from 2000 levels by the year 2020. The deal was accomplished through significant compromises, including exempting agriculture from GHG controls, nearly doubling the emissions allowances given for free to power companies, and increasing subsidies to industries (including the coal industry) perceived to be harmed by the legislation. While it remains unclear whether the legislation will win enactment right away (some Liberal senators are breaking with their party’s leadership and arguing that parliament should wait to see what happens in Copenhagen), the legislation includes a carbon tax commencing in 2011.

Both the U.S. and China revealed what they are willing to do to reduce their emissions of greenhouse gases (GHGs) prior to next week’s Copenhagen conference. In line with the Waxman/Markey bill that passed the House in June, President Obama announced on Wednesday that the U.S. would reduce its GHG emissions by 17 percent below 2005 levels by 2020. He also promised to attend part of the Copenhagen conference while on his way to Sweden to accept the Novel Peace Prize. China announced that Premier Wen Jiabao would attend the Copenhagen conference. While China did not pledge to reduce the absolute level of its GHG emissions, it announced that it would seek to reduce the “carbon intensity” of its economy (levels of CO2 emissions per unit of gross domestic product) by 40 to 45 percent by 2020. Both the U.S. and Chinese pledges were viewed by observers in glass-half-empty/glass-half-full terms. They represent progress in the sense that for the first time both nations - the two largest emitters of GHGs in the world - have made serious promises to the international community to start controlling their emissions. Yet they are disappointing to many environmentalists because they clearly are inadequate to achieve the global goal of containing global warming to no more than 2 degrees Celsius. People in the know in China report that the U.S. had proposed to the Chinese leadership that the two countries package their proposals together as part of a “G-2” effort to influence the Copenhagen negotiations, but that the Chinese insisted that any coordination should be done in the larger context of the G-20.

The growing partisan divide on climate change and other environmental issues makes one nostalgic for the days when groups like the Environmental Defense Fund (EDF), my former employer, were able to obtain high-level support from all parts of the ideological spectrum for aggressive environmental protection initiatives. EDF attorney Tom Graff, who died this month after a long battle with cancer, reveled in building diverse coalitions to support innovations in water management policy. Tom helped hire me to join EDF’s Berkeley office in 1981, though I never actually ended up there when the organization decided that it would be best for me to stay in D.C. due to the arrival of the Reagan administration. Even though his ideas often upset entrenched interests, Tom was someone who commanded enormous respect from everyone. He will be sorely missed by EDF, which has lost nearly all of its most experienced legal talent, and by the global environmental community.