SCOTUS Game Over for Climate Lawsuits?

Guy Caruso writes at Real Climate Energy Supreme Court Hearing Should Signal Shift From Baseless Lawsuits to Realistic Climate Solutions  Excerpts in italics with my bolds.

For years, energy manufacturers have helped drive down U.S. carbon emissions by unleashing a flood of home-grown, low-carbon natural gas, reducing America’s carbon footprint even as we use more energy. At the same time, despite emissions reduction progress, a handful of cities and counties including Baltimore, New York City, and Washington, DC among others have sued energy manufacturers in the name of climate change, spurred on by ambitious trial attorneys and imaginative legal theories.

Federal law is clear, though, with the Supreme Court clearly ruling in American Electric Power v. Connecticut in 2011 that it’s EPA’s job to regulate carbon emissions. That’s why trial attorneys have fought so hard to move climate lawsuits to state courts and that’s why a January 19th Supreme Court hearing could be so important.

Major energy firms have asked justices to send Baltimore’s climate lawsuit to federal court, creating a potential legal precedent that could effectively sink the climate lawsuit cottage industry.

Let’s be honest. Climate lawsuits aren’t really about climate anyway. For example, while attorneys argue publicly that such lawsuits are about reducing fossil fuel use in the name of climate, their filings seek only damages, not regulation of emissions or other policies that would actually help our climate. And the so-called damages? While cities like Oakland claim billions in climate change damages in legal filings, they sing a different tune in bond offerings, with Oakland officials saying they are “unable to predict” climate change’s impact on the city. The Manufacturers’ Accountability Project examined the motivations driving these lawsuits in a recent report. The report found that University of Oregon School of Law Professor Mary Christina Wood, who is involved in advancing climate lawsuit strategies stated,

“Building sea walls and repairing roads won’t do anything to fix our global climate system, but it will drain the profits of the fossil fuel companies.”

It’s not just hypocrisy that’s the problem. Climate lawsuits are actually counterproductive when you consider that energy manufacturers have made great strides in reducing emissions, addressing climate change, and pursuing clean energy technology and innovative solutions. In fact, increased energy supplies are driving climate gains. A new Energy Information Administration report says natural gas hydraulic fracturing and competitive energy markets are to credit for reducing U.S. carbon emissions, not government regulation. A switch from coal to natural gas has accounted for more than half the nation’s emissions reductions since 2010, with energy-related carbon emissions in the U.S. dropping 2.8% last year alone. Energy supplies, not government mandates, are why the International Energy Agency has credited the U.S. for achieving the largest absolute decline in carbon emissions of any nation since 2000.

Another major driver in these climate gains? The very manufacturing sector targeted with lawsuits. American manufacturers have reduced their carbon footprint 21 percent over the past decade while their economic value has increased 18 percent. For example, ExxonMobil is cutting greenhouse gas emissions to support Paris Agreement climate change goals. In December the energy firm announced plans for aggressive reductions in emissions, notably methane, over the next five years to help meet global net zero emissions goals. Chevron is taking action to reduce GHG emissions by about 5 million metric tons per year, while ConocoPhillips, Shell, and BP all have similar plans to use ingenuity and best practices to be part of the climate solution. Working together with industry could be a major path to net zero carbon emissions by 2050. [My comment: See post Why Net Zero CO2 is Social Suicide]

Climate lawsuits are legally flimsy and impractical. These suits are infused with the inherent danger of targeting the very energy manufacturers who are active and leading participants in reducing carbon emissions to lower global temperatures. Instead of taking us farther down this counterproductive path, public officials should seek real solutions instead of more lawsuits. U.S. Supreme Court justices have an important opportunity in January to pull the plug on unhelpful climate lawsuits and allow us all to focus instead on the monumental challenges that face our planet.

Background from previous post on Frivolous Climate Lawsuits

Craig Richardson writes at Real Clear Energy The Supreme Court Is Taking Critical Step Towards Resolving Frivolous Climate Suits. Excerpts in italics with my bolds.

Sometimes the most important Supreme Court decisions are overlooked because of their technical nature. That is the case with the Supreme Court’s choice to hear jurisdictional claims in B.P. P.L.C., et al. v. Mayor and City Council of Baltimore.

The Court’s ruling will either allow cities to pursue superfluous nuisance claims against energy companies in state courts or limit the suits to federal courts that are less prone to accept broad liability claims.

These jurisdictional claims are significant because they set the appropriate scope of appellate review for these suits. Lawsuits predicated on federal laws and involving federal officers’ actions should be decided at the federal level. By agreeing to hear arguments in the Baltimore case, the Supreme Court is taking a crucial step towards setting a consistent legal playing field.

The Supreme Court will not rule on the merits of Baltimore’s claims. Instead, they will decide whether the defendants can appeal a jurisdictional claim after a federal court rejects it.

Under existing law, it is clear the defendant can appeal aspects of the decision, but not whether the whole claim is fair game. A ruling in favor of the defendants would force multiple Circuit Courts to reevaluate their previous rulings and rehear jurisdictional claims by the energy companies.

Even though the justices won’t decide on the merits, the key is the context of Baltimore’s lawsuit. For years, city and state officials have been – in partnership with trial lawyers and leftist environmental groups – twisting the meaning of public nuisance laws to sue energy companies for their alleged contributions to climate change, even though these companies aren’t breaking the law. In recent months, localities have filed even more suits, making it especially important that lower courts know whether these cases should be resolved at the federal or state level.

These suits aren’t about helping the environment but are filed by leftist politicians and their backers hoping to score political points as they desperately attempt to fill their city or state coffers.

A senior Rhode Island official said the state’s climate lawsuit was designed to create a “sustainable funding stream” for Rhode Island. The state is desperate for funding because decades of big-spending policies have left Rhode Island officials with a budget deficit approaching $160 million.

In another instance, San Mateo County filed a lawsuit claiming there was a 93% risk of deadly floods by 2050 while telling municipal investors they had nothing to worry about. The S.E.C. is now investigating the county for fraud, and it is clear its lawsuit is motivated by politics, not science.

Instead of addressing climate change or working to build a sustainable future, leftist officials are trying to profit off energy companies, which would drive up the cost for all Americans. Given the clear political undertones of these cases, and the potential devastating impact on the U.S. economy, they must receive a fair hearing in a neutral venue.

It shouldn’t be surprising that state and city officials are fighting to have the cases heard in the state courts, the most favorable jurisdictions possible for them. Local officials are confident they can find a state judge who will issue a broad ruling against the energy companies, which would be difficult to overturn on appeal, regardless of the merits.

This outcome would be a disaster for energy companies and their customers, who would have to worry about individual state judges’ whims. These judges could create a mishmash of legal rulings that ends up being totally incoherent. It is easy to imagine a scenario where the defendants prevail in most of these frivolous lawsuits but lose a few in unfriendly jurisdictions and all of us will pay the price monetarily.

Additionally, state courts shouldn’t be addressing national political issues, especially on climate change, an issue that in the past the Supreme Court ruled should be handled by Congress and the president, not state courts. If laws need to be changed, Congress should change them, instead of having individual judges legislate from the bench. Some courts have already dismissed similar climate suits for this very reason.

Allowing state courts to decide debates of global importance is a recipe for disaster.

Generally, federal courts “are far less likely, as a whole and with some exceptions, to be willing to entertain expansive theories of liability than state courts,” according to George Mason University law professor Donald Kochan. This means federal courts are unlikely to perform legal gymnastics to try and hold energy companies accountable when it is clear they are operating within the law and have permits from the government.

2 comments

  1. ArndB · January 6

    „Climate lawsuits aren’t really about climate anyway.” Of course not! How can it? The best climatology can offer is using a layman’s explanation, substantially meaning that ‘climate is average weather’, see FIG: http://what-is-climate.com/2019_b/1b_climate.jpg . Average weather is mere statistig. Once a statistic, always a statistic. For any layman weather and climate are individual and emotional terms, accompanying him any hour on every day throughout his life.
    Discussed here: http://what-is-climate.com/
    Neither statistics nor emotional terms will be helpful for a transparent lawsuit.
    A Healthy Year 2021.

    Like

    • Ron Clutz · January 6

      Thanks Arnd, and best wishes to you as well. I looked at how weather and climate measurements are recorded as a way to define more specifically what is changing or not. Of course it leads to a similar conclusion: climate is weather statistics aggregated over decades. IOW, weather like a baseball player swinging his bat. Climate is his batting average, on base %, Runs Batted In, and so forth. The detailed discussion is Climate Confusion and Clarity

      Of course, this runs counter to emotional claims that climate is some kind of agent operating in nature, causing weather to be different than otherwise. That nonsense puts the cart before the horse.

      Like

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