Anti-Litigation

I'm happy to (belatedly) learn that the Clear Skies bill, President Bush's plan to weaken the Clean Air Act, died in committee last week. But what interested me was this quote from James Inhofe, the environment's Senatorial arch-nemesis:

"I'm afraid what has happened here is this bill has been killed by the environmental extremists who care more about continuing the litigation-friendly status quo and making political statements … than they do about reducing air pollution," Inhofe said after Wednesday's vote.

The debate over Clear Skies has been almost entirely over the amounts of reductions proposed (conservatives say it's better than nothing, liberals say it's worse than current law) and whether a cap-and-trade approach is appropriate for mercury (it's not, because unlike the pollutants that cause acid rain and climate change, mercury is very susceptible to collecting in dangerous "hot spots"). Litigation hasn't been on the agenda. So why did Inhofe bring it up alongside the predictable (but wrong) claim that blocking Clear Skies would lead to more pollution?

I think it's just spillover. Republicans have made anti-litigation a central theme in much of their rhetoric. Sometimes it's direct, like "tort reform." Other times it's painted as an insidious dirty trick used by liberals, as in the tirades against "judicial activism" on sexual issues and the demonization of the ACLU. Environment-wise, it was effective at getting the Healthy Forests Initiative passed. So Inhofe just forgot that Cleark Skies hadn't been wedded to the anti-litigation storyline.

The next question is why anti-litigation has become such a powerful theme. Part of it is that it's effective at rallying public support. Stories of bizarre suits and crazy product warning labels are standard fare for American entertainment (in any given issue of Reader's Digest, it's about 30% of the content). So there's a deep reservoir of public exasperation over the issue, particularly among people with less wonky media consumption habits.

Anti-litigation is also a useful lever for pursuing the larger Republican agenda of reducing the accountability of the elite. Filing a lawsuit is one of the only methods that citizens have to take justice into their own hands -- particularly when their opponent is a large corporation or the government. By demonizing and shutting down this avenue of redress, Republican leaders -- who occupy the seats of power in business and government -- insulate themselves from the public. Thus, it's part of the same constellation of strategies as heightened secrecy and exemptions from the rule of law.