California is my home. It’s a beautiful state with mostly great weather, endless beaches, haunting deserts, immense redwood forests, seascapes and escapes that most people can only dream of. In short, it’s a fine place. I especially recommend Santa Cruz.
But lately, the escutcheon of the state has been darkened by a fellow named Bill Lockyer, our attorney general. He’s going after one of the mainstays of life in the Golden State in a way that is so confused, so terrifying an abuse of state power, that it begs for redress (even though I had planned to talk more about leveraged buyouts this week).
Mr. Lockyer recently filed a lawsuit against General Motors, Ford Motor, Daimler-Chrysler, Toyota, Nissan and Honda. The allegation is that — surprise — they have been manufacturing automobiles for years that burn gasoline and spew emissions. These emissions, our attorney general says, add to global warming, harm people’s health, damage the welfare of the state, lessen the snowpack on California’s mountains, pollute rivers and generally create a “nuisance” for which his office is seeking tens of millions of dollars.
Now, for all of you who were not law students, Mr. Lockyer’s suit is a tort suit, such as you might file if you were parked at a stoplight and a car behind you failed to stop and slammed into your car, crushing it and injuring you.
The reason it’s called a tort suit is that the French word “tort” means a wrong or a wrongdoing, and failing to stop at a stoplight is wrong. The same would apply if a restaurant negligently poisoned you or if your neighbor crashed his car into your mailbox.
The point is that a wrong has to have been done in order for there to be a lawsuit. This is the problem, or one of the problems, with the attorney general’s lawsuit. The car companies have done nothing wrong. It’s that simple. They manufacture a perfectly legal product, a car or truck. They manufacture it in accordance with strict regulations about every single aspect of its building and use.
Its emissions in particular are regulated by both state and federal statutes. Most of these emissions have been cut fantastically in the last 50 years on a per-vehicle basis. Detroit and Tokyo — prodded by the government and environmentalists, to be sure — have worked like Trojans to make their cars spew out less harmful pollutants than they once did. Draconian regulations govern emissions in California. There is no meaningful allegation that these regulations have been evaded or avoided, either fraudulently or negligently.
The car is not only a legal product, but also a totally necessary product. There could basically be no life in California — or in the United States generally — without cars and trucks.
So, for making a lawful product that complies with regulations and is necessary and bought by millions of Californians each year, all knowing that their cars produce emissions, G.M., Ford and the others are being sued.
Where is the wrong here? What have the car companies done that is a wrongful act, except in the imagination of an attorney general?
Other lawful products, notably cigarettes, have been the subject of lawsuits. But those lawsuits have involved some kind of question of fraud or deception, like whether the tobacco companies didn’t divulge what they knew about the addictive, harmful effect of nicotine, or whether they marketed surreptitiously to children in violation of agreements not to do so.
The assault on automobile companies does not allege even the slightest degree of deception as to how cars work. Everyone knows that cars and trucks burn fuel, and that this process produces emissions. How could there be deception here? More to the point, if we as a people do not know that burning gasoline and diesel fuel causes carbon dioxide emissions, we are in such a state of willful ignorance that we have, as lawyers say, “assumed the risk.”
What comes next? Suing me because I barbecue salmon on my backyard grill? Why, under Mr. Lockyer’s reasoning, couldn’t there be a lawsuit against a class of all persons who barbecue, because it causes harmful emissions? If the state can sue large businesses because a lawful product used lawfully and according to law gives offense, what can’t the state sue about? Under Mr. Lockyer’s reasoning, why can’t the state sue everyone who drives a car or truck?
It gets worse. In tort law, there has to be a wrong, and there has to be causation — that is, the observed fact that the wrong has caused the alleged damage. As my lifelong pal, Arthur Best, law professor of torts at the University of Denver Sturm College of Law, says, there can be no victory in a tort suit without showing causation.
But where is the causation in Mr. Lockyer’s suit? How do we know that the lung and heart damage and global warming and melting snowpack were not caused by industrial emissions or by emissions that come from China and India and drift over California? How can anyone prove that any specific damage was done by any specific set of cars and trucks or by all of them? How can anyone prove that any specific amount of global warming was caused by any car maker?
Prosecutorial discretion is a scary concept. It’s scary in any state or on the federal level, as former President Bill Clinton and many others can testify. Prosecutors have so much power that if they use it carelessly or callously, terrible wrongs can happen.
I SAW this three decades ago as a very junior litigating lawyer at the Federal Trade Commission, where the thoughtless prosecution of innocent companies wasted the time and money of large corporations that are really agglomerations of many small stockholders. I was involved in one doozy about nutrition claims supposedly — but doubtfully — attributed to the company that made the fruit-flavored drink called Hi-C. I am happy to say the F.T.C. has improved dramatically since those days, when one of my supervisors explicitly did not care about the rights of defendants if they were rich.
Businesses are big, powerful entities. That does not mean they are without legal rights. That does not mean they are automatically wrong. That does not mean they deserve to be sued without any good reason.
The only “tort” here is what Mr. Lockyer is trying to do. It’s not too late for him to rethink it. I have worked with him in the past, and he’s a big-enough guy to admit he made a mistake.
Ben Stein is a lawyer, writer, actor and economist. E-mail: firstname.lastname@example.org.