The Energy Bill That Wasn't

The Energy Bill That Wasn't

Horner op-ed in Human Events
September 05, 2007

HUMAN EVENTS' readers are understandably difficult to shock these days with new examples of Congress’ political arrogance. Yet, as the House of Representatives was putting the finishing touches on their version of what they oddly call an “energy bill” -- dedicated to restricting energy supplies as well as demand -- the Republican House Energy Action Team released an eye-catching missive exposing what may be a new low for the Democrat-controlled 110th Congress. Despite the well-deserved ridicule of “carbon offsets -- those “indulgences” being sold  to let liberals assuage their green consciences over using energy by, for example, promising to plant a tree -- our lawmakers are plotting to spend millions of your dollars on them. Where this “offset” green pork would wind up is anyone’s guess.  Al Gore and his company is one option, though the Financial Times notes how it’s all a scam, anyway. (Is Gore a registered lobbyist, because he just pulled off a coup that would make Jack Abramoff blush?)  As bad or worse, Congress wants environmental activists to be able to impose liability on the government -- that is you, the taxpayer -- for supposedly causing “global warming” if a judge or jury in San Francisco thinks that would be a good idea.The House Government Reform Committee under “Hollywood” Henry Waxman (D-CA) agreed to create a new litigation pathway through which plaintiffs -- “aggrieved parties” as the bill defines them -- can sue to make the government buy these indulgences in a mandatory drive to be “carbon neutral.”  He did so by sneaking a new basis for lawsuits into their massive anti-energy bill. The amendment also exposes the taxpayer to liability for paying the aggrieved -- with a provision making sure their lawyers are taken care of too, of course -- harmed by the federal government causing global warming. (Investment advice: Go long on environmental ambulance chasers in the 9th Circuit, whose judges love such claims.) At least they were nice enough to hurriedly scribble in the margins of the amendment a limitation that only U.S. citizens can do this…for now.  (You can view this Pay the Trial Lawyers and Green Pressure Groups Act in the final version of the House anti-energy bill, which awaits “conference” with the Senate version, at pp. 291-295.)  This quiet little provision was snuck in the bill as a very big favor to the environmentalist lobby that spent so much to restore Mr. Waxman’s chairmanship.For background, not everyone is able to simply march into court and sue someone -- particularly when the defendant is the government.  To gain access to the courts one must demonstrate “standing” to sue.  Jurisdictions vary on the specifics but essentially this means they must present a) a real, non-hypothetical harm, distinct from the general population, b) arising causally from someone else’s actions, and c) to which a favorable decision could provide relief.This requirement attempts (too often in vain) to thin the herd of litigants jamming our courtrooms.  It is particularly troublesome to the environmental lobby as applied to their white whale, “global warming”, because on any practical, non-emotive level it is impossible to empirically establish causation between human activities and any demonstrable climatic change, let alone for a particular defendant to do so.  Further, they have problems proving that they could have been distinctly harmed by “global warming.”Should the environmentalists get past the gatekeeper requirements of standing and also having a “cause of action”, for example, negligent infliction of harm by causing “global warming”, they stand decent odds of encountering a sympathetic federal judge or jury.  At that point we’ll have a stampede as the greens seek to impose yet one more agenda on America through the courts that they could not obtain openly through the democratic process.Recently, the 9th Circuit allowed an environmentalist lawsuit to proceed which seeks to block taxpayer supported (OPIC and ExImBank-financed) overseas energy projects on the basis they will cause global warming, on the absurd grounds that the plaintiffs uniquely enjoy national parks.  This narrow exception still leaves the environmentalist extremists without a useful cause of action to apply more broadly.Such a ridiculous proposition would require specific legislation.  Have no fear, the Democrats are here.  While the greens’ doppelgangers in Congress are unable to pass Kyoto-style energy rationing legislation, they can sneak provisions into bills making lawsuits easier.Congress pulled this stunt at a particularly brazen moment, with the electorate already suspicious in the face of an abandoned promise to eliminate earmarks, antagonized over a passport fiasco reminding us how the government inefficiently squanders their tax dollars, and fresh off a (for now successful) revolt involving "twelve million undocumented Americans".Worse, it comes in the same legislation in which our inefficient but free-spending government also seeks to impose mandates to stop the private sector from what Congress just knows is too inefficient use of its own money -- a so-called “energy bill” that does little more than restrict supplies of energy including in ways that will drive up the cost of food (more than it already has), fuel, electricity and cars. Mark Twain used to joke that everyone complains about the weather, but no one does anything about it.  Now we know the trial lawyers have decided to sue over it, and have found a great ally in the current Congress, which has agreed to set up hardworking taxpayers to funnel lucre into phony carbon offset schemes and trial lawyer pockets.