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Innovation, Not Litigation, Is the Way Forward on Climate Change

The National Association of Manufacturers filed an amicus brief Thursday in support of the energy manufacturers defending themselves against a baseless climate change lawsuit brought by New York City. The case was initially dismissed from federal court last July, a decision that was then appealed by the city and is now being heard by the U.S. 2nd Circuit Court of Appeals. In its filing, the NAM provided a number of arguments for why the 2nd Circuit should uphold the lower court’s decision:

New York City’s lawsuit is “politically-oriented.”

This lawsuit is part of a new wave of politically-oriented litigation born out of frustration that not enough is being done, particularly in Washington, D.C., on climate change.”

The fact that the City is seeking to choose whom to penalize and for which products underscores the political nature of this litigation. This type of sweeping public policy raises the very competing interests the Supreme Court warned against in [American Electric Company v. Connecticut]. This penalty would be assessed irrespective of the ability of families and businesses to pay more for their energy needs, the impact on the U.S. economy and energy independence, or the other factors that Congress and federal agencies must consider when presented with such public policy choices.”

The energy manufacturers’ conduct does not constitute a “public nuisance.”

Determining whether the conduct giving rise to public nuisance liability is ‘reasonable’ is rarely controversial because public nuisance activities have no public benefit. … By contrast, Defendants’ energy products at issue here are highly beneficial. They are a staple of modern life that advance people’s health and safety, including in New York City homes, office buildings, theaters, sports arenas, roadways and hospitals.”

The U.S. Supreme Court’s ruling in AEP v. Connecticut asserts that the courts are not the appropriate venue to regulate climate change.

The Court stressed that setting national energy policy to account for climate change concerns was ‘within national legislative power,’ and that Congress and EPA are ‘better equipped to do the job than individual district judges issuing ad hoc, case-by-case’ decisions.”

The City wrongly suggests that liability seeking only compensation is not regulatory in nature. To the contrary, the Supreme Court has consistently held that tort damages ‘directly regulate’ conduct the same way as legislation and regulations.”

“The Supreme Court’s concerns were that judges ‘lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.’ … They ‘are confined by a record comprising the evidence the parties present,’ and ‘may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located.’”

Working with manufacturers is the most effective way to combat climate change.

“The National Association of Manufacturers is committed to protecting the environment and to environmental sustainability, and fully supports the ongoing national effort to protect our environment and improve public health through appropriate laws and regulations.”

“The best way to reduce climate change impacts is for governments to work with America’s manufacturers, including Defendants, on new technologies that reduce emissions and make energy more efficient and environmentally friendly. Innovation, not litigation, has been the proven way America has brought about societal-wide technological advancement.”