RealClearMarkets: Why Judges Aren't Buying Cities' Climate Change Lawsuits
By Patomak Senior Adviser Senator Luther Strange
A second judge in as many months has tossed a climate lawsuit brought by cities against major energy companies. In dismissing the New York City lawsuit, U.S. District Court Judge John F. Keenan wrote, “Global warming and solutions thereto must be addressed by the two other branches of government. "
Judge Keenan, like his fellow federal jurist William Alsup in California, sees the courtroom as the wrong venue for solving a societal concern such as climate change. Both recent dismissals should serve as a flashing red light to other municipalities who are working with climate activists and their opportunistic plaintiffs’ lawyers pursuing similar litigation.
This is not to suggest that there isn’t a proper use of the law when challenging the actions of energy firms. No other litigation during my tenure as Attorney General of Alabama was as consequential as the case against BP over the Deepwater Horizon oil spill. The harm to my state and its people was real and measurable. That why I tried the case myself, after being appointed by the court as coordinating counsel for the five Gulf Coast states party to the suit.
We won more than $2 billion in a landmark settlement on behalf of Alabamans. In our case, clear and measurable economic damage was done to Gulf Coast fishing outfits and shrimpers, as well as to small businesses that depend on tourism. It was the real-world, combined impact on everyone in our states—and municipalities—that justified the large verdict.
In contrast, today a number of cities – including Santa Cruz, Oakland, San Francisco, Boulder, and New York – and one state are bring lawsuits against energy companies alleging future harm from the effects of climate change brought on by the products these companies sell. They are seeking awards—often in the hundreds of millions of dollars—for events they outline in detail, but that have not yet happened. And by their own admission, these events may never happen.
But it gets better: some of these California cities have directly contradicted themselves by issuing precise projections about the future costs of climate change in their lawsuit, while indicating in their statements to the buyers of their municipal bonds that they know of no climate-related risks. They state in their bond issuance documents that it is impossible to predict whether flooding and other damage will occur, if it all. In many cases, it was the same city officials who made both sworn statements.
It’s not surprising that this “public nuisance” legal theory being pursued by municipalities is generating skepticism from Judges Keenan, Alsup and others, even while the movement continues to sign up new plaintiff cites.
Last month, Judge Alsup in California dismissed climate change lawsuits mounted by the cities of San Francisco and Oakland against the oil companies.
“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal,” Judge Alsup wrote. “Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”
Jurists are recognizing that empowering courts to determine national policy is dangerous precedent and counterproductive. Justice Ruth Bader Ginsburg summed up this skepticism in a similar case in 2011 involving climate change by pointing out that “the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of ‘super-EPA.’”
Climate change is a serious issue that impacts every person, deserving a serious public-policy debate through our democratic process. Keenan wrote in this week’s opinion, “Climate change is a fact of life, as is not contested by Defendants. But the serious problems caused thereby are not for the judiciary to ameliorate.”
Allowing courts to usurp the place of Congress and regulators is a recipe for incoherence. It takes power out of the hands of the people’s representatives. It pushes experts out of the process. It is likely to serve only to enrich trial lawyers.
Lawsuits will not develop sound public policy, and they will certainly not halt climate change. And the reality that two federal judges have now dismissed city climate cases should send a strong message to other local leaders: the courts are not the proper place to make climate policy.
Luther Strange is a former U.S. Senator from Alabama and served as the state’s attorney general from 2011 to 2017. He is a senior adviser for Patomak Global Partners and provides legal counsel through Luther Strange & Associates, LLC.