By Steven F. Greenwald and Jeffrey P. Gray
David Crane, the CEO of NRG Energy, was recently quoted in a widely disseminated publication as saying: “It is a moral imperative that we take steps to reduce CO
2 concentration in the earth’s atmosphere.” One might expect those reacting to Crane’s comments (made in a February 2007 presentation) to either criticize him for “drinking the climate change Kool-Aid” or praise him for recognizing the issue’s urgency and committing his company to be part of the solution. However, his comment was used to fuel neither argument.
Rather, Crane is quoted in a complaint filed against NRG, other electric generators, and oil and coal companies in federal court on behalf of the residents of Kivalina, Alaska. The complaint alleges that the defendants’ production of electricity and petroleum have been the primary cause of global warming, which in turn has caused the plaintiffs’ native islands in northern Alaska to become uninhabitable, requiring that the approximate 400 residents be relocated.
Guilt by association
The plaintiffs assert that Crane’s statement and similar declarations by other of the defendants’ representatives constitute “admissions” that the defendants had knowledge that electricity generation is a primary contributor to global warming and that such global warming would ultimately impose great impacts, including rendering the plaintiffs’ native land uninhabitable. The complaint seeks up to $400 million in damages.
The lawsuit remains in the preliminary stages. Nonetheless, it raises important issues as to the manner in which this nation best responds to the multiplicity of challenges that the specter of global warming raises. Should the existence of global warming be determined and the range of adverse consequences be resolved through litigation and with remedies potentially determined by juries? Or are these issues better addressed through legislative and regulatory proceedings?
Regardless of the merits of this lawsuit, climate change issues are best resolved in the legislative and regulatory arenas. Assessing liability for past actions—particularly if the alleged tortuous conduct is generating electricity in accordance with federal, state, and local permitting rules—will distract society from the critical objectives of determining the actual scope of the problem, how best to solve it, and how to allocate the costs required to address it.
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