Having Our Cars and Eating Them Too

Part of becoming an adult is accepting responsibility for the consequences of your actions. That’s one tempting argument for arrested adolescence. It’s much more satisfying to congratulate yourself for everything good that happens to you while blaming someone else for everything bad. Judging from his recent conduct, California Attorney General Bill Lockyer has been watching too many reruns of "Peter Pan."

His is the latest bid for membership in the Have Your Cake and Eat It Too Club. It came in the form of a federal lawsuit against the major American and Japanese automakers for, among other things, making spring arrive early.

Since 1950, the state claims, the date at which California’s mountain snowpack melts each year "has shifted forward in time by 10 to 30 days." The car companies, he says, are to blame for all the carbon dioxide emitted by passenger vehicles, which makes them responsible for global warming, which is the reason the snow turns too quickly to slush.

In Lockyer’s view, the manufacturers are guilty of creating an enormous public nuisance. He claims they "have engaged in, and continue to engage in, conduct that is injurious to health and an interference with the comfortable enjoyment of life and property."

So serious is the harm from this conduct that Lockyer wants the automakers to . . . keep doing it. The usual remedy for a public nuisance — say, someone in a residential neighborhood holding raucous parties every night till dawn, or letting vicious dogs run loose — is to stop it. But the state doesn’t propose that they quit selling their products to Californians or switch to zero-emission cars. Instead, it asks the manufacturers to turn over large sums of money while continuing to commit their terrible wrongs.

That should be a clue to something Lockyer passes over: While cars may have drawbacks, they also have benefits, and most people would not be willing to give up those benefits or pay a lot more to enjoy them. That combination of virtues and vices makes them well-suited to regulations reflecting a democratic consensus, and a poor candidate for control by the courts.

As a federal judge said in 2005, dismissing a global-warming suit against electric power companies, "cases presenting political questions are consigned to the political branches that are accountable to the people, not to the judiciary, and the judiciary is without power to resolve them. This is one of those cases."

There is something comical about the notion that Detroit has run roughshod over a state that regulates cars more strictly than any other state. California imposed the nation’s first limits on auto emissions, back in 1966, years before the federal government did. Automakers already have to specially equip cars to sell them in California, which under federal law is empowered to impose stricter tailpipe rules than those in effect for the rest of the country.

In everything related to the automobile, the state government in Sacramento (and the electorate it represents) is more an accomplice than a victim. To start with, it owns and operates 37,000 vehicles, which may be the biggest fleet of vehicles on the road. It has built 50,000 miles of highways and freeways. Thanks to the activities of the auto industry, it collects billions of dollars every year in sales taxes, license and registration fees, and fuel levies.

But the irony is lost on Lockyer. As the car companies noted in their response to the complaint, the attorney general takes the view that California should be awarded money for "damages supposedly caused by the nuisance that the state itself has handsomely profited from and affirmatively helped create." It’s the equivalent of Mary-Kate suing Ashley for the stresses of her acting career.

Fortunately, the lawsuit is not likely to succeed, since it asks judges to establish standards on auto emissions that legislators have refused to enact. Absent some arguable violation of the Constitution, courts are generally reluctant to impose their views on matters that elected bodies are perfectly capable of handling.

The attorney general’s gripe, of course, is not that Congress and the president haven’t acted on global warming, but that they haven’t done what he wants. By going to court, he’s trying to override the legitimate choices of democratically accountable lawmakers, replacing them with rule by judicial decree. Talk about a public nuisance.