Over at the Point of Law Forum, the Manhattan Institute's Walter Olson is disappointed in California's Attorney General, whom he had praised during his 2006 campaign for expressing skepticism about the state's emissions lawsuit against automakers. He links approvingly to a recent editorial from the San Diego Union-Tribune that blasts both Brown's continuation of the nuisance lawsuit and his recent actions forcing local growth planning to account for global warming impacts.
Unfortunately, the Union Tribune fails to dispute or even acknowledge Brown's stated legal rationale in both cases, instead focusing on an argument that he is essentially making up the law as he goes along, and is engaged in a politically-motivated "abuse of power."
For instance, the editors' critique of Brown's now-settled sprawl lawsuit against San Bernardino County argues that by forcing planners to account for climate-change impact so the state can meet as-yet-unwritten emissions goals, he is engaging in an entirely political action without any legal grounding. Yet they (and Olson) fail to acknowledge that Brown has very clearly rooted his actions in authority claimed by his office under the decades-old California Environmental Quality Act. Both the newspaper and Olson also decline to engage Brown's stated legal reasons for deciding back in February to continue the state's emissions lawsuit:
[Brown] said Thursday that he had changed his view after looking more closely at the legal basis of the suit, including a 1907 Supreme Court ruling that allowed a state to sue companies in federal court for discharging harmful gases that crossed state lines. That ruling was cited in his office's filing defending California's claim that vehicles' greenhouse gas emissions are a "public nuisance,'' an activity that interferes with public health and safety.
To be clear, Brown's critics do have potential grounds to debate the legal, policy, and even political implications behind his actions. And those who were under the mistaken impression that he'd puruse a significantly more muted environmental agenda certainly have reason to express disappointment (even as they do grudgingly acknowledge that his tone has been fairly conciliatory and pragmatic).
Yet by failing to actually engage in that kind of principled debate, and instead suggesting that we're merely witnessing a flip-flopping "Attorney General Moonbeam" tailor the law to his own political ambitions, they go a bit too far and do their own ideas a great disservice.