There is a long-established standard in courts of law: a plaintiff must provide what is known as "standing." Standing, in a nutshell, is reasonable proof that the plaintiff has suffered a harm because of the law or action they are challenging. For example, the D.C. gun case was originally called "Parker v. D.C.," but the complaints of Ms. Parker and all the other plaintiffs except Dick Heller were thrown out for lack of standing. Their complaints were based on conjecture: that they could reasonably expect to be arrested for having a firearm didn't pass the D.C. Circuit Court of Appeals' standing standard. Dick Heller showed standing by being rejected for a gun permit, going through a procedural hurdle to show the government actively denied his purported 2nd Amendment right--i.e., harm.
Self-proclaimed victims of global warming or those who "expect to suffer" from it - from beachfront property owners to asthmatics - for the first time would be able to sue the federal government or private businesses over greenhouse gas emissions under a little-noticed provision slipped into the House climate bill. (emphasis mine)
While I find that particular interpretation dubious, it illustrates my point that standing is an important and substantive hurdle that limits the suits brought into court. Expanding standing to expected harm, based on arbitrary standards of emissions, is entirely too burdensome on any defendant, whether a private entity or the federal government.
For example: while you are more likely to develop lung cancer or emphysema from smoking, it is not a statistical certainty. Indeed, you may get one or the other--or neither. You may, as smokers often defend themselves, get hit by a bus tomorrow and never suffer any long-term consequences from smoking. This law, if passed, will allow people to sue on grounds that they may--or indeed, may not--suffer harm from emissions.
This is not to anyway argue with the scientific methods of global warming. But there is not a single reputable study or finding that says that any individual or group will, with 100% certainty, suffer damages or harm as a result of carbon emissions. Furthermore, EVEN if there were, the extent of that damage is purely conjecture and incalculable for the purposes of awarding damages.
To exact an amount for damages that haven't happened yet is anathema to our theories of jurisprudence. This is a dangerous provision that can be described as nothing other than a gift to environmentalists and trial lawyers. This isn't justice: this is punitive preemption.
Ronald Coase famously dealt with pollution in market terms nearly 40 years ago, but I will grant that even in his framework, harm will come to people. In that case, the harmed have recourse through the court system, as they very well should. But while I fear an environmental regulatory regime under this Congress, it is infinitely preferable to an EPA rendered impotent by countless and contradicting lawsuits.
If they stop and think about it, I doubt highly that even environmentalist would like environmental protection by judicial fiat either--unless, of course, they want Justice Scalia determining environmental standards?
hrm.
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