A mistake by Attorney General Jerry Brown led to a legal setback for the former governor yesterday. A lawsuit he okayed after he became California’s top law enforcement officer was thrown out of court yesterday by a federal judge.
Despite his long-standing green credentials, Brown was skeptical during last year’s campaign about a high-profile lawsuit filed by his predecessor as attorney general, Bill Lockyer, now the state’s treasurer, against major U.S. and Japanese automakers over vehicle emissions.
Lockyer thought the big car makers should pay for damages to the state’s environment from greenhouse gases emitted by their cars, but Brown had been leery about Lockyer’s high-profile lawsuit. His wife and campaign manager Anne Gust Brown noted that what the car manufacturers have been doing is legal, and Brown himself said, “I’m going to enforce the laws vigorously and with common sense.”
Environmentalists wanted Brown to stick with the suit. “I think Lockyer’s suit against the car manufacturers can be a creative way to get at global warming,” said John White of the Center for Energy Efficiency and Renewable Technologies. “I hope Jerry doesn’t abandon it.”
But though he’d made critical comments about it in last fall’s campaign, Brown decided not to drop the suit upon assuming the office in January, opting instead to retain it as leverage.
He said he would use the lawsuit to pursue settlement talks with the CEOs of the car companies. It didn’t work out that way. They weren’t interested in talking and they weren’t interested in settling anything. Not around a lawsuit they expected to win. The problem with the suit is that, while automakers have undoubtedly contributed to the greenhouse effect, in California and of course elsewhere, they haven’t broken the law.
The suit sought to hold the six biggest automakers in the world — Chrysler, Ford, General Motors, Honda, Nissan, and Toyota — liable for their contribution to climate change. But U.S. District Judge Martin Jenkins in San Francisco ruled it that it is impossible to determine to what extent automakers are responsible for any such damages in California. He said that it is up to legislators and not judges to determine how responsible automakers are for climate change.
“In this case,” wrote Jenkins, “by seeking to impose damages for the defendant automakers’ lawful worldwide sale of automobiles, plaintiff’s nuisance claims sufficiently implicate the political branches’ powers over interstate commerce and foreign policy.”
A court “injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government.”
A fairly predictable result, and one that Brown should have anticipated.
Actually, he probably did anticipate it last fall. And changed his mind anyway. While it made environmentalists happy, it also led to a legal defeat for the state and for Brown himself.
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Is this a big deal?
Is this a big deal?
Not particularly.
Everyone makes mistakes. He probably did it to keep the enviros happy.
It’s certainly true that everyone makes mistakes.
I always have had respect for Lockyer, but starting with the energy crisis and continuing until late in the day of his tenure at the AG’s office, I thought he gave up on the rational policies he previously advanced in favor of the sensational
“Any coward can fight a battle when he is sure of winning, but give me the man who has the pluck to fight when he is sure of losing”.—George Eliot
The fact that the behavior is legal does not make it right. Except in the eyes of the law.
The fact that the behavior is legal does not make it right. Except in the eyes of the law.
Sorry for the double-posting.
Sorry for the double-posting.
re: “Any coward can fight a battle when he is sure of winning, but give me the man who has the pluck to fight when he is sure of losing.”
Do you mean like Lyndon Larouche?
Brown is a clever opportunist. His reach extends his grasp. Always has, always will.
No video today?
Not sure I’d call it a mistake. The overreach if there was one was Lockyer’s. To drop his predecessor’s suit would not only have alienated the enviros but communicated weakness to opponents. I don’t think he loses any cred with opponents by losing this one, which wasn’t his baby. He may also have had staff attorneys on the case who were very invested in the quest, and there could be profound morale implications to cutting his own guys off at the knees, problems you don’t want to invoke when just settling in as the new boss and establishing a relationship with the crew. Very little downside that I can see to allowing the case to go forward to its probably foreseeable conclusion.
We all do make mistakes, and I should have talked to my lawyer before giving the Attorney General advice!
A more important legal development in the state’s ongoing legal battle with the auto industry and the Bush Administration over the Air Resources Board’s global warming was last week’s decision by a federal district court upholding the State of Vermont’s global warming law. Along with the Massachusetts vs EPA decision, the Vermont decision was a clear setback for the auto industry, and a positive sign for California.
I think Wilbur has it; once the suit was initiated, Brown couldn’t back down from it; Lockyer put him in an untenable position.
And I think V. John is right, as well — this was a small matter compared to the victories that Brown and others have been winning in cases where three years ago nobody would’ve predicted victory.
What Wilbur said.
He didn’t have to pursue the case. But then, I don’t have to keep a few thousand lawyers happy.
>Auros :
I think Wilbur has it; once the suit was initiated, Brown couldn’t back down from it; Lockyer put him in an untenable position.
And I think V. John is right, as well — this was a small matter compared to the victories that Brown and others have been winning in cases where three years ago nobody would’ve predicted victory.
Sep 18, 2007 09:44 AM
Quite so, John, and as reported here. Though not in a morning column. There will be more of those, of course, as this long and winding road on climate change unfolds.
>V. John White :
We all do make mistakes, and I should have talked to my lawyer before giving the Attorney General advice!
A more important legal development in the state’s ongoing legal battle with the auto industry and the Bush Administration over the Air Resources Board’s global warming was last week’s decision by a federal district court upholding the State of Vermont’s global warming law. Along with the Massachusetts vs EPA decision, the Vermont decision was a clear setback for the auto industry, and a positive sign for California.
Sep 18, 2007 09:23 AM
Good points, Wilbur. Though strength is also communicated by the clarity of hard and fast distinctions.
>Wilbur :
Not sure I’d call it a mistake. The overreach if there was one was Lockyer’s. To drop his predecessor’s suit would not only have alienated the enviros but communicated weakness to opponents.
Patience.
>Jonas Blane :
No video today?
Sep 18, 2007 09:12 AM
Patience.
>Jonas Blane :
No video today?
Sep 18, 2007 09:12 AM
Does John White (of the Center for Energy Efficiency and Renewable Technologies) drive a car or fly in a plane? If so, he should be sued and forced to pay for damages to the environment. He has a choice, also.
Come on, “Eddy,” do you? Get real. Are you using a computer, powered by the grid, which relies heavily on fossil fuel? How minutely would you like to parse this, at the expense of focusing on more important, larger issues?
I am the attorney who handled the case for AGs Lockyer and Brown. I’m sure that we can debate whether the suit was a good idea or not, but here are a couple of things to think about. First, the case has drawn very substantial interest in California, the US, and around the world, and highlighted the auto industry’s contribution to global warming, the harm in California, and the need for those companies to take responsibility for their emissions. Second, we lost the case at the district court, but this is a serious legal argument, and we may very well win at the appellate court if we decide to appeal. This is but one skirmish is a very large battle.
I agree with you on this issue. However, if what the auto companies are doing is not illegal, how they can be held responsible?
^ George W. and Detroit auto business supports corn ethanol fuel but oppose the Pavley bill by Bluewater Network’s Dr. Russel Long & REEP, I’m confused
* Does corn ethanol policy increase oil use and oil profit?
* Some folks think so
* Corn ethanol uses lots of water
* Has the courts in San Francisco rejected mandated ethanol in California fuel?
* Corn ethanol STINKS
* Snake oil sales sure can sound good but California may not buy
* Maybe Arnold will terminate “car tax” AB118
It’s a very interesting situation, Ken. A shifting mosaic, so to speak.
Thanks for your comments.
>Ken Alex :
I am the attorney who handled the case for AGs Lockyer and Brown. I’m sure that we can debate whether the suit was a good idea or not, but here are a couple of things to think about. First, the case has drawn very substantial interest in California, the US, and around the world, and highlighted the auto industry’s contribution to global warming, the harm in California, and the need for those companies to take responsibility for their emissions. Second, we lost the case at the district court, but this is a serious legal argument, and we may very well win at the appellate court if we decide to appeal. This is but one skirmish is a very large battle.
Sep 18, 2007 10:49 AM
The California-based efforts seem increasingly to be focused on cellulosic ethanol rather than corn.
>Charlie Peters :
^ George W. and Detroit auto business supports corn ethanol fuel but oppose the Pavley bill by Bluewater Network’s Dr. Russel Long & REEP, I’m confused
Actually, I believe John White rides a bicycle to and from work.
>Coastal Eddy :
Does John White (of the Center for Energy Efficiency and Renewable Technologies) drive a car or fly in a plane? If so, he should be sued and forced to pay for damages to the environment. He has a choice, also.
Sep 18, 2007 10:20 AM
Actually, I believe John White rides a bicycle to and from work.
>Coastal Eddy :
Does John White (of the Center for Energy Efficiency and Renewable Technologies) drive a car or fly in a plane? If so, he should be sued and forced to pay for damages to the environment. He has a choice, also.
Sep 18, 2007 10:20 AM
Given the false nature of the contemporary global warming context, as well as the universally consentual and necessary use of modern transportation, the outcome should have always been a forgone conclusion.
Makes one wonder when people will be punished for breathing, cows for farting.
Avarice and ambition ruin altruism.
Actually, the cases, not to mention the politics, are generally going strongly in the other direction, i.e., the one you clearly don’t like.
You can see that by looking at other stories here in the past week.
Doesn’t this give Brown leverage with the enviros? He can cite this loss when they press him to go beyond what he thinks is prudent. Ditto staff attorneys.
Egads! An outbreak of pro-fossil fuel burning impenetrable rhetotric. At least Bill is straighforward–he likes fast cars that go zoom. No attempt to wrap it in phony justification.
>David Walker :
Given the false nature of the contemporary global warming context, as well as the universally consentual and necessary use of modern transportation, the outcome should have always been a forgone conclusion.
Brown overreached. Is it not about intent? I don’t believe carmakers wake up on any morning and say, “What can I do to screw things up?” They’re probably thinking of ways to survive, even if it means getting back in bed with the misguided global warming faithful. Obviously AG Brown is attempting to pivot the energy paradigm. By itself, demanding better performance and efficiency is great. But he and Lockyer were wrong in this case.
Did the other major case call carmaker’s intentions into question, or did it clearly define a state’s right to legislate? After all, if a misguided state wants to have the highest used car prices in America, more power to them.
Which other case are you referring to?
That would be the Vermont case:
http://www.signonsandiego.com/uniontrib/20070913/news_1n13cars.html
The crazy 9th Circuit could still reverse this, couldn’t they?
Possible.
I can see you need some education, which I don’t have time for in a comment.
Vermont copied California’s tailpipe emissions law passed in 2002 and stalled by the Bush administration ever since.
As did quite a few other states.
So this case is about states determining the extent of the problem and adopting a legislative solution, ie, just what the judge yesterday said was lacking about holding the car companies liable for damages.
And we’re really not talking about an isolated state here and there. California has always led in these matters, due to its unique role under the Clean Air Act.
And the auto industry has always been forced to follow in the end, because California is simply too big a market on its own, and when it’s joined by many other states, well, that’s the ball game.
Hmm, I seem to have explained it after all …
>David Walker :
That would be the Vermont case:
http://www.signonsandiego.com/uniontrib/20070913/news_1n1 3cars.html
Sep 18, 2007 02:23 PM
But it’s all caused by sun spots. We don’t need to do anything. lol
But it’s all caused by sun spots. We don’t need to do anything. lol
I hear the surf off Mount Diablo is going to be great.
This doesn’t seem like a big deal.
You guys are all wet!!!! The worst contributor to Global Warming is China not California. Remember China has a lot of underground fires that no one wants to put out yet they DID NOT SIGN ON THE KYOTO PROTOCOL TREATY. THEY GET TO BUY GLOBAL WARMING CREDITS FROM US AND CONTINUE TO LET THE FIRES BURN!!!! PaY To PoLLuTe!!!Bill Bradley…..This is the inconvenient truth you don’t want to talk about…..CO2 Credits….Carbon TAX!!!! The judge was right throwing the case out. The AGs office was overreaching.
Brown made a mistake pursuing the lawsuit.
However, China being a larger contributor to the greenhouse effect than California is not really the point.
I agree with Wilbur.
While I think it was a mistake, I also don’t think it was a big deal.
The overall dynamics of the issue remain the same.
Bill, I’ve been involved now for about 20 years. The contemporary global warming context is now a sham for politicians, governments and corporate elite. When’s the left going to wake up and smell the coffee?? Of course, I’ve learned to explains the salience of it all is a waste of time in these forums.
What the Sac Bee has to say:
Auto suit unmasked as a stunt
By Dan Walters – Bee Columnist, September 19, 2007
When California Attorney General Bill Lockyer sued the six major auto manufacturers a year ago, claiming that they were liable for adverse consequences of global warming, it was widely seen as an election year stunt.
Lockyer, who was being forced out of the attorney generalship by term limits and running for state treasurer, filed the suit just 48 days before the election but insisted that it was a serious effort to make automakers pay for producing cars that generated greenhouse gases that could damage California. Many others, however, questioned whether there was any legal basis in federal law for the suit.
Interestingly enough, the man who was running to succeed Lockyer as attorney general, former Gov. Jerry Brown, was not very sanguine about the lawsuit’s chances of success. During an interview with the San Diego Union-Tribune shortly after it was filed, Brown questioned its legal integrity.
“One of the principles of tort law is that damages should not be speculative,” Brown said, wondering aloud whether Lockyer could prove “causation” between the automakers’ products and shrinkage in the Sierra snowpack, which was one of Lockyer’s claims.
Once he was elected, however, Brown did the sort of political pirouette for which he was justly famous as governor three decades ago, declaring that the suit was “a solid case and we’re going to pursue it vigorously … to prevent the catastrophic consequences of this global warming problem.”
“With the current public, state and congressional focus on global warming and possible solutions,” Brown continued, “this is the right time for the state and the automakers to find cooperative approaches and resolve litigation in a constructive manner.”
The automakers, however, rebuffed Brown’s settlement offer and pressed the federal courts to toss it as lacking legal merit. This week, they succeeded.
U.S. District Judge Martin J. Jenkins of San Francisco declared that “policy decisions concerning the authority and standards for carbon dioxide emissions lie with the political branches of government, and not with the courts.” Among other things, he opined that it would be virtually impossible for courts to apportion blame for climate change.
In effect, Jenkins declared what others had said about the suit a year earlier, and what Brown even offered before the election. But while it should be an embarrassment for both politicians, it actually works in their favor, politics being what they are, by allowing them to claim credit for pursuing the fight over global warming and trying to ding big, bad automakers, knowing it will resonate with many voters.
Global warming is the new political shibboleth, one that Al Gore, Arnold Schwarzenegger and other political figures exploit to the max. Lockyer and Brown wanted some of the spotlight and the lawsuit was a way of getting it. They knew, or should have known, that it lacked any legal merit but can claim credit for trying and blame the courts for their failure.
Lockyer is still at it. A day after Jenkins’ decision, now-Treasurer Lockyer joined a coalition of investors and environmentalists in petitioning the U.S. Securities and Exchange Commission to gain fuller disclosure by publicly traded companies of the effects of global warming on their operations and profits.
Brown, meanwhile, clearly wants to return to the governorship three years hence and will use global warming as his vehicle. That’s why, for instance, he’s been suing, or threatening to sue, local governments for their alleged failure to consider global warming in their development planning.
Cynical? Of course, but classic Jerry Brown, who has always sought to exploit the currently trendy issue, whatever it might be.
About the writer: Reach Dan Walters at (916) 321-1195 or dwalters@sacbee.com.