by David Bookbinder, Chief Climate Counsel for the Sierra Club. The views expressed here are his own.

Today the U.S. District Court for the District of Rhode Island became the third federal court to toss out the auto industry’s legal attack on California’s greenhouse gas emission standards (the “Pavley standards”, named after former California Assemblywoman Fran Pavley.)  This time, the court did not even reach the merits; at the  request of Judge Ernest Torres, the parties briefed only the issue of res judicata or, for the non-lawyers, “two other federal courts have already decided this exact issue against the auto industry so please explain to me why I should go through this a third time.”

The judge made short shrift of the industry’s arguments as to why res judicata should not apply here.  The court’s discussion of one such argument merits attention.  The auto industry argued that because the case involved “important national issues”, it would be in the public interest to have a decision on the merits from a third court (or even a fourth or fifth, etc.  No joke – the auto industry has already filed a fourth identical case.)  Judge Torres noted that the “public interest in relitigating an issue” has been recognized “only in cases where issue preclusion has been asserted against the government.”  And the “public interest” in allowing the government to relitigate issues it has previously lost “derives from the fact that the government litigates on behalf of the public.”  “By contrast”, the Judge noted acidly:

Private parties litigate in order to further their own interests which, sometimes, may be contrary to the interests of the general public.  Indeed, in this case, it is difficult to see what interest the public has in permitting the plaintiffs another bite of the apple in challenging regulations limiting the emission of greenhouse gases into the atmosphere.  Slip. Op. at 16.

I think Judge Torres was trying to tell these guys something, but I doubt they’ll get the message.  Which brings me to the real issue here, which is how this case perfectly illustrates Detroit’s congenital inability to deal with change.  Detroit responded to the Pavley regulations not by sitting down with the California Air Resources Board and negotiating or, God forbid, actually building these cars, but by immediately going to court.  Not only the four federal cases, but at least four state lawsuits as well; they have lost three of those, too and the fourth one is ongoing.

That was dumb enough, but nothing compared with Detroit’s refusal to alter this strategy even when it proved not only ineffective (they’re 0-6), but affirmatively counter-productive.  If you think it is hard to ask for money on Capitol Hill when you’ve arrived on one of the company jets, try begging for it from Senators Bingaman, Boxer, Cantwell, Cardin, Casey, Clinton, Collins, Dodd, Feinstein, Kennedy, Kerry, Kyl, Lautenberg, Leahy, Lieberman, McCain, Menendez, Merkley, Mikulski, Murray, Reed, Sanders, Schumer, Snowe, Specter, Udall, Whitehouse, and Wyden  — all Senators from states that have adopted the Pavley standards, and almost all of them enthusiastic supporters of these regulations.  And don’t forget to tell them that you need the money to pay the lawyers to try and overturn those standards.

Captain Climate says good luck with that.  And I wonder what the Trustee in Bankruptcy will think of all this . . .