Genuine international efforts coupled with bipartisan work by our elected representatives can address global climate change in a responsible way.
Should the mayors of cities such as Baltimore, San Francisco or Honolulu dictate national energy policy?
Apparently, they think they should.
More than a dozen cities across the country have filed “public nuisance” lawsuits, claiming that a handful of large and profitable energy companies are responsible for climate change and should pay ruinous damages relating to the alleged effects of global warming in their towns. These lawsuits are even more ambitious than they sound. They seek flashy financial judgments and injunctive terms that will change national energy policy in ways no legislature ever would.
Judge David Stras of the U.S. Court of Appeals for the Eighth Circuit noted as much in a concurring opinion earlier this month touching Minnesota’s climate nuisance suit against Exxon Mobil: “Minnesota’s end game is equally clear: change the companies’ behavior on a global scale,” he wrote. Quoting prior case law, he underscores the fundamental understanding that, “The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Force energy producers to pay so excessively, the thinking goes, that they’ll abandon fossil fuel extraction for other forms of production or distribution.
The federal courts have look askance at similar climate suits. But liberal cities and their trial lawyer allies rightly suspect they can secure big payouts and punishing injunctive terms in their own state courts. The legal fight just now is over venue: Should state courts adjudicate these nuisance claims? Or should the federal courts?
Consider how strange the state-court route is from a federalist perspective. As Judge Stras noted, Minnesota’s “attempt to set national energy policy through its own consumer-protection laws would effectively override the policy choices made by the federal government and other states.”
Further, we would be naive to ignore the political upside to this jurisdictional gamesmanship. Liberal mayors probably don’t expect their climate lawsuits to actually fix climate change. More likely, they hope to score funding to fuel their spending programs and help fund their political causes.
And who ultimately wins in these lawsuits? Not the taxpayer and not the environment. No, the big beneficiary will be the trial lawyers who will reap huge legal fees for their work.
Think about what would happen if these cities prevailed and obtained damages. Hundreds of cities would then follow. Our judicial system would be overrun with wild claims of existing or future damages from global warming. And we would assuredly see decades of conflicting rulings, inconsistent damage awards handed out by dozens of state courts with endless appeals.
Hypocrisies also abound here. None of these municipal plaintiffs acknowledge that they and their constituents profit from beneficial activities that happen to require carbon emissions, such as conducted by the airline industry, trucking, cruise ships, steel/aluminum manufacturing, agriculture and heavy industry.
And these officials ignore that their own jurisdictions emit tons of carbon, reliant as they are on fossil fuels for transportation, tourism and local manufacturing. Yet, when targeting fossil fuel companies and claiming they are bad actors, these officials won’t acknowledge their role or responsibility in dealing with climate change or offer to pay their fair share as contributors themselves who profit.
In all events, do the mayors of Baltimore, San Francisco or Honolulu really have access to the scientific expertise and the advanced technology needed to conclusively determine who or what industry sectors – if any – in America are responsible for climate change, and how to properly assess damages relating to global warming?
Several petitions are now pending before the Supreme Court to give the justices a chance to end these jurisdictional shenanigans. While the Court’s ruling could pave the way for these cases to be removed to federal court, in truth no court is a proper venue to adjudicate an issue as complex and far-reaching as global climate change.
When determining proper climate policy and a productive path to reduce carbon from the atmosphere, we must rely on expert, non-political analysis of multifaceted, scientific matters. The United States can and should work effectively with other nations to address climate change without politics and platitudes.
Genuine international efforts coupled with bipartisan work by our elected representatives can address global climate change in a responsible way. Certainly, lower state courts, even federal courts, are not the proper forum for issues as complex as the warming of the planet. And singling out a handful of domestic energy producers for punishment while ignoring other industries and carbon emitters – including the plaintiffs in these cases – is simply not right or fair.
Donald J. Kochan is professor of law and executive director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School.
