Last year, a Missouri jury awarded $4.14 billion in punitive damages against Johnson & Johnson, in a case alleging the company knew its talcum powder might be tainted with small amounts of cancer-causing asbestos. According to one report, internal company documents warned of this risk, but nothing was done, giving rise to a finding of reckless disregard for its consumers. Now, the company faces investigations by the Department of Justice and the Securities and Exchange Commission.
In a different context, one could argue — with documents as evidence — that Congress and the Trump administration recognize the reality of climate change and the grave, imminent dangers it presents to our health, economy and national security, but have done practically nothing to minimize these dangers and protect the American public from harm. One could make the case that they are acting in reckless disregard for the welfare of our country and citizenry.
{mosads}Just as a lawyer pieces together documents for a jury in closing argument, it is time to summarize recent government documents showing what Congress and the administration know about climate change.
Let us begin with the 2018 National Defense Authorization Act, which has a provision that reads: “Climate change is a direct threat to the national security of the United States and is impacting stability in areas of the world both where the United States Armed Forces are operating today and where strategic implications for future conflict exist.” Forty-five Republicans rejected stripping any language about climate change from the bill. Thus, Congress is well aware of the reality and dangers of climate change.
The Trump administration in July 2018 published a Draft Environmental Impact Statement that explicitly reaffirms the science and dangers of climate change. The National Highway Traffic Safety Administration (NHTSA) published the statement — prepared in cooperation with the Environmental Protection Agency and Department of Energy — on its proposal to eliminate Obama-era car fuel efficiency standards.
In its two chapters devoted to climate change, the document explains that naturally-occurring greenhouse gases trap the sun’s radiation inside the atmosphere, making Earth’s temperature suitable for life, but then it declares: “Human activities, particularly fossil-fuel combustion, lead to the presence of increased concentrations of GHGs [greenhouse gases] in the atmosphere; this buildup of GHGs is changing the Earth’s energy balance.” In plain English, the administration adopts the science of climate change caused by human activity.
The NHTSA impact statement acknowledges that Earth’s temperature has increased by 1.8 degrees Fahrenheit since the late 1800s, with most of the increase occurring since 1970. It describes the nightmare our country will suffer in coming decades because of climate change, based on current projected levels of greenhouse gas emissions. It states that the temperature is projected to incrementally increase an additional 6.27°F by 2100. If the projections are true, much of our planet could become uninhabitable.
{mossecondads}The document concludes that, in this century, climate change will cause health conditions and deaths, significantly stress our food and water supply, and raise sea levels, flooding coastal cities. The Obama-era fuel efficiency standards are only a drop in the bucket when it comes to carbon reduction, so the NHTSA remarkably argues that we should disregard the horrible outcomes it has outlined and eliminate those standards. That’s akin to saying let’s enjoy ourselves while we can.
Then there is the Fourth National Climate Assessment published last November. This report, required every four years by federal law, was prepared with the assistance of more than 300 experts and reviewed by 13 federal agencies. It, too, concludes that climate change is real and anthropogenic in origin. Like the NHTSA’s impact statement, the climate assessment describes how rising temperatures will increase mortality rates. Climate change, the report emphasizes, will negatively impact agriculture, fisheries, tourism, power supplies, infrastructure and trade; it estimates the U.S. economy will be negatively impacted by $500 billion every year, more than twice the impact of the Great Recession.
The president’s response to this peer-reviewed report was “I don’t believe it,” thought he cited no basis to doubt it. The congressional response was not much better: no legislation to protect our country’s citizenry from impending harm; no law to begin transforming our economy from fossil fuels to renewable energies; no law to fund further research on renewable-energy efficiency and carbon-removal technologies.
It would be one thing if we had centuries to alter the climate change curve. We don’t. According to the Intergovernmental Panel on Climate Change, we have about 10 years to reduce our greenhouse gas emissions by 45 percent below 2010 levels or we lock in much of the damage that these government documents describe.
These are the warnings by scientists and administrators to our policymakers of the grave dangers of climate change — the proverbial “smoking guns.” The risks will impact nearly everyone. It is hard to imagine how Congress, the president and administration can simply ignore the government’s own warnings with the health and welfare of Americans and our country at stake.
Unfortunately for us all, members of Congress have immunity for legislative actions and inactions, and the president probably has similar immunity. Without such immunity, the fear of legal liability might provoke our government officials to address the risks of climate change. They may be protected from any legal consequences of reckless disregard for our life and well-being, but immunity cannot protect them from the judgment that history will throw upon them.
Gary A. Garfield is the retired chairman, president and CEO of Bridgestone Americas Inc. He practiced law for 29 years and was the general counsel and chief compliance officer before leading the company. As a former board member of the Rubber Manufacturers Association, he and others successfully convinced Congress to adopt legislation establishing minimum standards for tires related to climate change. He works with the Environmental Defense Fund, the Citizens Climate Lobby and others on the issue of climate change.