America's Mayors Should Not File Copycat Climate Suits
The United States Conference of Mayors met in Boston last week, and a key topic was climate change. Mayors have been looking for ways to exert leadership on this issue, but one idea that should be tossed to the waste bin is suing America’s energy producers over so-called “climate change injuries.” These lawsuits, started by a handful of California mayors last summer, are orchestrated efforts to sue companies for doing nothing more than producing the energy we use every day. The litigation’s backers are actively recruiting mayors to file carbon copy lawsuits.
Progressives who care about climate change should not reflexively cheer or join this litigation. The lawsuits, the brainchild of a 2012 conference in La Jolla, California, of environmental activists and lawyers, are driven by private law firms. They seek to make energy companies pay for local infrastructure projects, such as sea walls. Let’s be real: Building a seawall around our coastline and making energy producers pay for it has as much to do with combatting climate change as Trump’s border wall has to do with illegal immigration — nothing but symbolism.
What these lawsuits are really about is our way of life. Suing dozens of American oil, gas, and other companies cannot change the fact that we all rely on energy products every day to heat our homes, fuel our cars, and turn on our lights. One of the organizers of these lawsuits even admitted that publicly vilifying energy production was a key objective here.
In March, a federal judge holding a hearing on climate change science exposed the true nature of the litigation in the City of Oakland’s case. In an effort to drive the media narrative, the law firms leading this effort included bold allegations of industry secrecy and conspiracy. But, in a reverse Perry Mason moment, Oakland found itself at the wrong end of its own smoking gun evidence.
The big moment came at the end of the hearing. Judge Alsup, a Clinton appointee with a solid reputation for immersing himself into the subject matter of a case, pointed to a paragraph in the complaint that suggested the existence of a “conspiratorial document” showing that energy producers “knew good and well that global warming was right around the corner.” Judge Alsup said he was expecting it “to be a big thing.”
But, as Judge Alsup found, “it turned out it wasn’t quite that” at all. All this smoking gun evidence ended up being was an industry representative’s notes from a 1995 meeting of the Intergovernmental Panel on Climate Change (IPCC). As Judge Alsup concluded, “That was it. Nothing more… It’s hard to say that they were secretly aware [of climate change]. By that point they knew. Everybody knew everything.” There was no secret information.
When Judge Alsup asked Oakland’s counsel if he had anything to say about the City’s misleading accusations, the lawyer simply said, “No.” The next week, the City submitted a revised lawsuit that struck that paragraph. To avoid similar embarrassment, the City also eliminated one of the most incendiary allegations in the complaint where it falsely accused the American Petroleum Institute of leading a “disinformation campaign.”
Oakland’s experience should be a cautionary tale for mayors around the country: Be careful before filing a lawsuit drafted by political activists that they have not researched or initiated themselves. When governments, from Oakland to New York City, use the power of the people to sue any person or business, it should be for law enforcement reasons, not politics. Attorneys general from several states urged Judge Alsup to dismiss Oakland’s case for these very reasons.
As this episode shows, litigation is the wrong way to tackle climate change. Progressive governments should know better than to sue people and businesses because they are unhappy with Washington. As Justice Ginsburg wrote for the Supreme Court the last time such climate change tort suits were tried, setting national energy and emissions policy are subjects “within national legislative power.” They should not be decided by judges or under any state’s law.
The truth is that America’s energy policy involves balancing many complex political issues. Climate change and environmental concerns are certainly important, but so too are energy independence, accessibility of natural resources, and affordability for American families. If these political activists want to change Washington or how we consume energy, they should start with being straightforward and stop abusing our civil justice system.
Phil Goldberg is the Director of the Progressive Policy Institute’s Center for Civil Justice and Office Managing Partner for Shook Hardy & Bacon LLP in Washington, D.C.