William and Mary Law School

Malone Warns of Global Warming Disaster

Law Professor Linda Malone urged the William & Mary community to do more to prevent global warming in this year's St. George Tucker Lecture at the Marshall-Wythe School of Law on Nov. 29. Pointing to fledgling efforts to highlight the long term threats posed by global warming, she emphasized that litigation can help but that major changes begin at home.

"There is no longer any debate that there is global warming," Malone said. "There is no longer any debate that man-made emissions are contributing to them."

In a speech titled "Think Globally, Act Locally: A Pivotal Transformation in the Global Warming Debate," the Marshall-Wythe School of Law Foundation Professor of Law also noted that the national security of the United States depends, to a large extent, on the environmental security of the United States. Reducing the nation's dependency on foreign oil, for instance, can only happen if Americans reduce their dependency on oil in general, Malone said.

"Environmental security is national security, and in the energy context, I think we all know that is the case," said Malone. "They are not separable. They are part and parcel of the same thing."

LindaMalone


Fortunately for the environment, scientists, members of Congress, Administration officials, and the general public seem to agree that steps must be taken to solve the problem. Exactly what steps must be taken and who should take those steps remain open for debate. The potential harms of global warming and their political salience make "strange bedfellows," Malone said, listing California Governor Arnold Schwarzenegger's support for the toughest tailpipe emissions standards of any state.

"Now I ask you, who would have thought that Arnold Schwarzenegger would turn out to be the global warming terminator? Don't just look to your friends. Look to your enemies to form a coalition," she said.

Senator John Warner (R-Va.) and Sen. Joe Lieberman (D-Conn.) have also teamed up to sponsor what Malone said is "the most important" cap-and-trade bill now pending in Congress.

"Governor [Tim] Kaine said that the coastal area of Virginia may be the second most at risk area in the country," said Malone. Scientists predict dire consequences for the commonwealth if citizens and government officials do not intervene by 2012, the widely accepted "turning point" for disaster scenarios, she said.

Increasingly intense rain, more toxins in the water, and the destruction of coastal wetlands are just a few of the potential consequences that Virginia could face if the tide does not turn soon.

Malone's lecture also detailed the relatively brief history of environmental litigation aimed at combating climate change caused by global warming. Speaking to an audience of about fifty people, Malone examined domestic litigation strategies including international environmental lawsuits brought by aliens under the Alien Tort Claims Act, the extraterritorial application of U.S. environmental laws to foreign areas under U.S. control or influence, lawsuits demanding transparency and adequate representation on federal advisory committees, and purely domestic environmental nuisance and tort litigation.

Although the National Environmental Protection Act "lacks a citizen enforcement provision, rather oddly," Malone said, "what we will see in the context of global warming is that the major federal action is in the United States so that it is not an extraterritorial application at all."

"These cases began to be filed in 2005," she said. "Look at who our plaintiffs are and look who our defendants are. It's not the government going after the polluter. It's quite different in that way."

In California v. National Highway Traffic Safety Administration, which was filed on May 3, 2006 and decided in favor of the plaintiffs on Nov. 15, 2007, the Ninth Circuit Court of Appeals ruled that the Administration must consider the "economic cost of tailpipe CO2's and their environmental impact 'as expeditiously as practicable,' the third federal court in less than a year to do so," Malone said.

Using humor to drive the point home, Malone told a story about how she recently arrived in Louisville, Kentucky, to give a presentation on global warming only to find that the rental car company had assigned her a Jeep Commander. "I had never seen a car, an SUV, a jeep pickup--I don't know what you call it--that big," she said. "It was parked next to the only other car available, an H2 Hummer."

Although federal CAFE emissions standards require passenger cars to average 27 miles to the gallon, the Jeep Commander, which only "gets 13 miles to the gallon," as Malone quickly discovered as she drove her rental vehicle off the lot, and other sports utility vehicles that fall under the category of "light trucks" are exempt from the CAFE standards.

"If you ask why are [the Jeep Commander and other high polluting sports utility vehicles] exempt, the answer is that they are big and they pollute more," Malone said. "You might then ask, why are they exempt?"

Malone also drew laughter from the assembled students, professors, and other members of the community with her response to a question about the public's confusion regarding what is fact and what is fiction in the national debate about global warming.

"Now if the weather's strange, that doesn't mean there's global warming," she said. "But maybe we should take the knowledge [that global warming is a serious problem] where we can get it."

The prominent law professor concluded her lecture on an optimistic note, suggesting that the tide of public opinion on global warming has turned, paving the way for solutions that are "completely outside the box." Malone was quick to say, however, that the non-scientific community can, and must, do more to prevent global warming.

"As lawyers, we can't take too much credit in this context," she said. "Scientists have really done a lot of the heavy lifting."

Genevieve Jenkins '09, said that she found Malone's lecture both informative and alarming. "I think [Malone] did a very comprehensive job of covering the interplay of international and domestic issues and what we can do as individuals and attorneys to combat global warming," she said.