What I'll Talk About When I Talk About Global Warming

I spend a lot of time thinking about what I'll tell my four-year-old daughter about global warming. I'm a betting person and my money says our children are going to view environmental destruction as our generation's defining failure. If that prediction bears out, she's going to want an accounting of what went wrong.

Truth is, I bear some responsibility. I'm not Ed Begley Jr. I don't drive an electric car or compost and you won't find solar panels atop our roof. I have defenses: composting bins are smelly and electric cars are expensive. We're barely saving enough for college as it is. She's generous and I like to think she'll deem these explanations reasonable. She knows that even Ed Begley makes compromises. She's seen Best in Show and Project ALF.

Rather she'll focus on the more uncomfortable question why people like me -- lawyers -- didn't do more to enact policies that would have curbed our carbon footprint. Part of the answer, of course, is that people and businesses standing to benefit from fossil fuel consumption have spent amply to delay the acceptance of global warming as scientific fact and to mobilize opposition to commonsensical policies like taxing gasoline and crediting the proceeds to taxpayers.

But she's a student of history and she'll recognize this answer as insufficient. Even after Rachel Carson published Silent Spring and the Cuyahoga River caught fire, polluters lobbied hard against federal regulation. Yet environmentalists and environmentalism had enough influence in 1972 that Congress overrode Richard Nixon's veto of the Clean Water Act -- meaning a two-thirds majority of both houses supported a transformative environmental initiative opposed by business. My daughter's precocious. She'll want to know why if we could get our act together then we couldn't get our act together now.

The problem is global warming's consequences are deferred. The immorality of this has been widely discussed. Our generation is gutting the planet, pumping carbon dioxide into the air, and leaving it to our grandchildren to deal with the consequences. What hasn't been discussed is how poorly equipped our legal system is to deal with problems of intergenerational equity. Litigation played a critical role in paving the way for the Clean Water Act. Unless something big shifts, courts won't play a similar role on climate change.

One barrier is the concept of standing -- a simple, superficially innocuous legal doctrine that's designed to keep courts from wasting time on speculative lawsuits. A plaintiff generally has to show three things: (1) he suffered an actual injury, (2) the person he's suing caused the injury, and (3) a court can fix it. No living plaintiff can meet these conditions regarding climate change. They haven't been injured yet, causation is disputed, and all remedies are speculative. In 2007, the Supreme Court ruled 5-4 that states had standing to challenge the EPA's conclusion that it couldn't regulate greenhouse gasses under the Clean Air Act, but the decision hardly requires the EPA to act on anything, and it remains doubtful that a person (as opposed to a state) would have standing.

The bigger problem is that the people who will be most affected by global warming aren't around yet. They're relying on us to advocate for them, but they have no rights to assert. Things began to improve for African-Americans when the Supreme Court began treating race as a "suspect classification," requiring legislators who wanted to treat blacks and whites differently to demonstrate a compelling reason for doing so. What makes a classification suspect? Four things: the group has historically been discriminated against, they can't change who they are, they're politically powerless, and they can contribute to society. Which of those things isn't true of our kids? But no one's treating the unborn as a suspect classification.

So I expect I'll tell my daughter that the problem was she had no rights. But I'd rather tell a happy story. I'd rather say we granted people standing to sue on behalf of the unborn, and gave them rights, requiring that our children's interests be balanced against our own. It was an unconventional solution, but the unprecedented magnitude of the problem demanded innovation. And we were happy to do it, I'll tell her, because she's everything.