Government Officials Should Prioritize Climate Solutions, Not Climate Lawsuits

Government Officials Should Prioritize Climate Solutions, Not Climate Lawsuits
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As COP26 concluded last week in Glasgow, the verdict is still out as to whether the two-week climate summit will ultimately be considered a success.  On the one hand, there were plenty of pledges, high level political, corporate, and celebrity attendees, and media attention. On the other hand, none of that activity automatically translates into concrete results. The real measure of success will be what happens next. Will countries implement their pledges? Will there be transparency and accurate reporting? Will there be technological breakthroughs to accelerate the transformation to a lower carbon future?

Looking ahead is what we should all be doing. And that is why backward looking lawsuits that seek to pin the blame for climate change on energy companies are especially counterproductive.

But that has not stopped many states and municipalities from filing these types of claims. Some of them have been summarily tossed out. In April, for instance, the US Court of Appeals for the Second Circuit found no merit in New York City’s complaint, writing that “global warming is a uniquely international concern that touches upon issues of federalism and foreign policy.” The court then added, “the Clean Air Act grants the Environmental Protection Agency – not federal courts – the authority to regulate domestic greenhouse gas emissions.”

But many other cases remain. In Delaware and Washington DC, the plaintiffs are trying to move the cases from federal courts to what they consider more favorable state court systems. And other litigants, such as the cities of Baltimore, Boulder, and Oakland, and the states of Connecticut, Massachusetts, and Rhode Island, also await procedural decisions.

Regardless of the legal merit of these cases, it’s hard to see how they move the needle in addressing what more and more policymakers – on both sides of the political aisle – agree is a real problem. Demonizing and seeking damages from traditional energy companies does nothing to encourage innovation, nothing to transform the energy mix, nothing to change government policy.

And the timing is especially ironic. The lawsuits blaming fossil fuel producers are winding their way through the courts at the same time that the Biden Administration is trying to address higher energy prices by calling on Russia, Saudi Arabia and other OPEC countries to increase their production of oil and natural gas.

There are far better ways for government officials to fight climate change. For starters, we can actually recognize the contribution of natural gas, which has doubled its share of US electricity generation, displacing coal and thereby reducing CO2 emissions by 32 percent since 2005. And there’s no reason why we can’t continue to build on that success. In an April 2021 Scientific American articleUniversity of Texas Professor Michael Webber explained that “the technology exists to extract the carbon or to transform the gas so that carbon coming out and carbon going in balance to zero or near zero.” That would mean, of course, that decarbonized gas could work alongside renewables to achieve significant results. Additionally, it would allow us to leverage our vast existing natural gas infrastructure.

There are also programs that encourage innovation – and we should focus on making them work most effectively. Last year, Congress enacted the first comprehensive update to the country’s energy policy in 13 years. That legislation authorized research, development, and demonstration of next generation technologies that will reduce emissions.  There are too many components from that bill to list, but for me, one of the standouts were constructive changes to the Energy Department’s loan guarantee office, something that I was involved in establishing  during the Bush Administration. The loan office has provided over $30 billion in loans and guarantees to companies, and now has more than $40 billion available for renewables, energy efficiency, advanced nuclear power, and advanced fossil fuel technology. Another more recent example that could lead to significant breakthroughs is the Department’s “Energy Earthshots” initiative.    

To lead on climate, we need to think and act in productive ways, working alongside energy producers on new solutions while leveraging what we know works. And as you would expect, the vast majority of Americans agree with that approach. According to a recent Manufacturers' Accountability Project poll, even among households who want to prioritize fighting climate change, only 13% believe that it is very important to sue companies.   

So as we move past Glasgow, it’s essential to look ahead – to focus on results. Common sense and innovative solutions that leverage the private sector, not lawsuits that attack them, will make a real difference. And that’s how we should define success. 

Jeffrey Kupfer, a former acting deputy secretary of energy in the Bush administration, is an adjunct professor of policy at Carnegie Mellon University’s Heinz College and the president of ConservAmerica. 

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