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Momentum Building Against Sham Lawsuits

A string of major setbacks in the attempts by eight cities and counties in California and New York City to sue the nation’s energy manufacturers for causing global climate change suggests that the end of the lawsuits should be near.

First, a federal court in California dealt a significant blow last week to Oakland and San Francisco’s lawsuits, saying the cities could not use California law to sue manufacturers under their misguided legal theory.  As the court explained, the cities’ lawsuits attack “behavior worldwide.”  While they pled their lawsuits under “state-law claims,” their allegations “depend on a global complex of geophysical cause and effect involving all nations of the planet.” If the cities turn to federal public nuisance theory, another dead-end awaits them. The U.S. Supreme Court and U.S. Court of Appeals for the Ninth Circuit have, in separate cases, rejected the viability of federal public nuisance claims over climate issues.  This is a global problem, requiring thoughtful global solutions.

In another important development, the “study” that cities have used as their foundation for the lawsuits has been debunked. The so-called “study” was published by Professor Dr. Naomi Oreskes, who is an advocate for the litigation and tried to cast blame on certain companies over their public disclosures about global climate change. Dr. Kimberly A. Neuendorf of Cleveland State University, who developed the underlying methodology used in Oreskes’s “study,” issued her own report calling Oreskes’s work “unreliable, invalid” and “biased.” Dr. Neuendorf concluded there is “no scientific support” for Oreskes’s conclusions.

Finally, new details about the arrangements between lawyers and municipalities around this litigation are coming to light. The National Association of Manufacturers’ (NAM) Manufacturers’ Accountability Project (MAP) recently filed a California Public Records Act (CPRA) request with the City of Richmond, California, seeking all documents and communications related to that city’s lawsuit, such as any agreement with private trial lawyers for a cut of any money awarded to the city. The CPRA request is just the latest public records request submitted by the MAP to nine jurisdictions, including New York City.  Documents obtained through these previous requests have revealed that one of the law firms bringing these claims stands to receive 23.5 percent of any settlements or awards.

These setbacks show this flawed legal strategy is on the verge of defeat.  Those tying themselves to the fate of the lawsuits may want to reconsider.  They are going to have to answer questions as to why they are wasting valuable public resources on this ill-fated litigation.