Pseudo-Tort Alert!

As is now widely known, states' attorneys general garnered a huge windfall for their treasuries (and for the bank accounts of selected private lawyers) in tort suits against tobacco companies. The suits were invalid as a matter of law, but never mind -- they pressured Big Tobacco to agree, in exchange for shelter from competition, to split future profits with the states. (When private parties do this, it's racketeering.) Unfortunately, eight states' AGs have just shown that these suits are addictive -- on July 21 they filed a new pseudo-tort intimidation suit against five large electric utilities.

What civil wrong have these defendants committed? They dared to operate 174 power plants, in full compliance with state and federal regulations. In so doing, they had the audacity to produce carbon dioxide, an unavoidable byproduct of burning fossil fuels. How has this caused the eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin) to suffer? Would their populations be better off if we did not burn fossil fuels? Apparently so, says the tort suit -- it alleges that the power plants are nuisances.

And did these five defendants behave differently from all those other utilities that were not sued? Not at all -- the AGs want all companies to understand the moral of this story: Any company can be sued, at any time, for legally doing business, when the AGs decide to regulate by litigation. (The Big Apple joined the suit alleging that these dastardly emissions are "incompatible with maintaining a clean and sustainable" New York City.)

The absurdity is so palpable that it's almost insulting to have to spell it out. CO2 is nontoxic, odorless, colorless and not a "pollutant" under the federal Clean Air Act. Indeed, many of these same AGs threatened to sue the EPA because it didn't agree with them on this last count.

The AGs' main argument (apart from the breathtaking claim that the provision of energy is, somehow, a "nuisance") is that CO2 contributes to "greenhouse warming." But two recent studies from the Universities of Rochester and Virginia demonstrate that the global warming claim is not supported by observational evidence. All of the elaborate computer models established by the warming lobby predict that the warming effect should increase with altitude, becoming twice as strong at about three miles high. The scientists compared results from three state-of-the-art models with four independent observational data sets. The disagreement was striking: The models all give temperature trends that increase with altitude -- but the observations show the opposite.

The second study examined the disparity between thermometer measurements at the earth's surface, which show a significant warming trend, and temperatures of the lower atmosphere from balloons as well as from satellites; neither show significant atmospheric warming. (An earlier report by the National Academy of Sciences had also confirmed such a disparity.) Another way of determining the temperature near the ground surface agrees with both the satellite and independent balloon results, establishing that there is indeed no general warming. The conclusion? There's something wrong with the alleged warming trend derived from weather stations located mostly in growing urbanized areas and airports. Diverse analyses all point to local contamination of surface-station readings. Maybe all we can say for sure is that airports are warming.

Junk science plus junk law add up to one super-junk case. Voters in their states should remember the AGs' names, and every owner of a CO2-emitting device (a car, an oil furnace, or a mouth) should help relieve them of their addiction to tort suits at the ballot box. On the other hand, if the utilities have the courage to defend this case, we'll have the opportunity to test the scientific basis of the global warming scare in a court of law. And the sooner, the better.

Mr. Krauss, a law professor at George Mason, is author of "Fire and Smoke: Government Tort Suits and the Rule of Law" (The Independent Institute, 2001). Mr. Singer, professor emeritus at the University of Virginia and co-author of the cited scientific studies, was director of the U.S. Weather Satellite Service.