Smoke Gets in our Eyes: Guest Post by Terry Tamminen

Let us say Bob’s BBQ opens next to your home. Bob refuses to do anything to stop the greasy soot and the smell of burning ribs that pour into your windows each night, because he has permits and operates lawfully. Technically he may be right, but if you take him to court there’s a good chance he will be found guilty of creating a nuisance and ordered to direct his chimney smoke away from your windows so you can resume the normal use and enjoyment of your home. If Bob’s smoke was affecting your property value and health, your case would be even stronger.

That’s why the state of California is suing auto manufacturers on behalf of the public, seeking compensation for global warming pollution that is known to aggravate heat waves, wildfires and coastal flooding. Whether it is BBQ soot or tailpipe emissions, federal law guarantees the opportunity to seek redress against public nuisances — acts or circumstances that interfere with our right to use or enjoy our surroundings or community. Take, for example, that in February 2006, a jury in Rhode Island, decided that three paint companies were guilty of creating a “public nuisance” because of lead in their products that, although sold when lead paint was legal, continued to poison the state’s children.

In North Carolina, the state’s attorney general sued 11 power plants in early 2006 for creating a “public nuisance” that causes respiratory illness, kills trees and fouls waterways. He asked the court to mandate pollution control-devices on the coal-fired plants. Sounds a lot like Bob’s BBQ, eh?

When California Attorney General Bill Lockyer sued automakers this September for contributing to global warming, he followed a well-worn path that leads to fairer and more equitable use of our commonwealth, in this case, our state treasury. His suit seeks to compensate taxpayers for some of the costs of dealing with climate change and comes only after trying other means to abate the threat posed by vehicle emissions. California has long recognized the threats posed by global warming, which range from sea-level rise to deadly heat waves. Last year, researchers from the Scripps Institution of Oceanography at the University of California-San Diego identified climate change as a leading driver of larger wildfires. And in 2002, California enacted legislation that would require a reduction in greenhouse-gas emissions from cars sold in the state. But automakers have sued in court to overturn that law, wanting instead to continue an ongoing nuisance that interferes with the public’s ability to use and enjoy its surroundings and community.

The law is like a polite request to Bob to clean up his BBQ. If Bob decided to ignore that request, you might turn to the courts. In the case of California, the state is arguably obliged to use the courts to terminate the nuisance created by the automakers who refuse to address pollution.

Some have questioned Lockyer’s motives, but that was to be expected. Mississippi Attorney General Mike Moore was also skewered when he brought the first case against tobacco companies for the harms they inflicted on the public and the state treasury. After hundreds of billions of dollars in settlements with every state in the union, no one doubts Moore’s tactics now.

The comparison of tobacco and auto companies is fitting, because the toxins that emanate from your tailpipe are remarkably similar to tobacco smoke. In effect, this makes all of us victims of secondhand smoke and causes tens of thousands of illnesses and deaths each year akin to those common in smokers. Moreover, automakers have taken a page from the tobacco company playbook, lying to the public and government regulators for decades about the dangers of their products, and the cleaner and safer models that they could have introduced to the marketplace long ago.

California and 11 other states have convinced the U.S. Supreme Court to look into whether the federal government must regulate the amount of greenhouse gases that comes from vehicles. Hearings before the court begin today.

And as other states calculate the true cost of our oil addiction and discover the billions of taxpayer dollars that go up in smoke for health care, pollution cleanup and responding to climate change, their attorneys general may follow California’s lead and tackle the problem in the same way. That is, of course, unless Bob comes to his senses and fixes the BBQ joint before the jury makes him do it.

Terry Tamminen is the author of Lives Per Gallon, an unblinking assessment of the true price of petroleum and a prescription for change.