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Separating Climate Change Litigation Facts from Myths

Proponents of using litigation to address global climate change by suing energy manufacturers for producing the fuels society uses have put forth various arguments in support of this “solution.” At the same time, they have engaged in a coordinated (and well-funded) campaign to persuade public officials to view climate change litigation as viable in spite of the fact that none of the dozens of such cases brought over the past two decades have been successful.

In May, the University of Hawai’i William S. Richardson School of Law hosted a climate litigation conference. Associate Dean Denise Antolini, an avowed supporter of the litigation, helped lead the program. She had worked as an attorney for one of the organizations waging the climate change litigation campaign—the Sierra Club Legal Defense Fund, now called Earthjustice.

Manufacturers’ Accountability Project (MAP) Special Counsel Phil Goldberg reached out to Dean Antolini requesting balance in the program. The 10-speaker, 5-hour program did not include anyone who disagreed with these lawsuits, which is unusual for law schools. They pride themselves on presenting students with diverse viewpoints in the events they host.

This request was met with a barrage of criticisms and public relations efforts clearly intended to chill, rather than foster, dialogue. In Dean Antolini’s letter to MAP and an op-ed for the Honolulu Star Advertiser, she made a number of incorrect assertions perpetuating myths advanced by proponents of the litigation. Below are the top five myths warranting correction.

Myth #1: Climate change litigation is a noncontroversial application of traditional tort law.

Advocates of this litigation obviously cannot admit there is no legal basis for their claims, but in their two-decade long campaign to sue the energy industry over global climate change all cases reaching a final disposition have been dismissed. How to mitigate the causes and impacts of the global challenge of climate change is a political, not liability issue.

From 2004 to 2012, several courts made this point in dismissing climate change liability suits. In 2011, the U.S. Supreme Court’s ruling in American Electric Power (AEP) v. Connecticut effectively ended the first wave of these lawsuits. In this unanimous ruling authored by Justice Ginsburg, the Court dismissed the federal public nuisance claim before it and warned against climate change tort litigation generally. It found that Congress and federal agencies are “better equipped to do the job [of addressing climate change] than individual district judges issuing ad hoc, case-by-case” decisions. It also said that setting national energy policy takes balancing many “competing interests,” and judges “lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”

Of the three other climate change suits brought around the same time, one had been dismissed and the other two were dismissed shortly after AEP. As of 2012, it appeared courts had drawn clear lines against climate change tort litigation targeting the private sector. These cases included claims over products and conduct, filed by public officials and private plaintiffs, under federal and state law, and for injunctive relief and monetary damages. As the Ninth Circuit stated in dismissing Kivalina v. ExxonMobil Corp., given the Supreme Court’s unmistakable message, “it would be incongruous to allow [the litigation] to be revived in another form.”

Dean Antolini, like others, try to narrow AEP. For example, she suggests AEP must be viewed “within the context of EPA’s ongoing federal rulemaking.” The Court, though, was clear that it rejected this argument and that the “critical point” is that Congress delegated these issues to EPA – not whether EPA acts. She also objected to MAP’s characterization of the claims as baseless or controversial, stating that merit should be decided in the courts.

The current round of lawsuits started in 2017. The judges dismissing three of the recent cases echoed the sentiments of AEP. It should now be clear that developing national energy policy, including over emissions levels and policies over production and use of fuels, are legislative and regulatory matters—not liability issues for the courts.

Myth #2: Because AEP v. Connecticut addressed only federal tort claims, the recent climate change lawsuits based on state law are viable and can still proceed.

The litigation advocates have been trying to distinguish the current climate change lawsuits from AEP. AEP involved claims against utilities seeking to directly regulate emissions under federal law. So, the current cases largely target energy manufacturers over damages under state law. As the courts have been finding, these are differences without legal distinctions.

To be clear, state lawsuits do not fall outside the influence of AEP simply because the Court had only a federal claim before it. In oral argument, Justice Kennedy identified this awkwardness, saying “[i]t would be very odd” or illogical for state courts to set national policy on greenhouse gas emissions when federal courts are barred from doing so. In its ruling, the Court clearly conveyed this concern, stating that climate change is “of special federal interest” and that “borrowing the law of a particular State would be inappropriate.” Thus, the Court’s lack of opportunity to squarely address state claims should not be confused with allowing them.

The Court’s concern that the judiciary is not the institution for determining key issues of national energy policy applies equally to judges applying state or federal law. Judge Keenan, who dismissed New York City’s state claims last year, made this point: “Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.”

In her letter to MAP, Dean Antolini suggests our position that states should heed the warnings in AEP is akin to “mixing up federal v. state law claims.” As indicated, we are reporting what the Supreme Court and federal judges have stated when dismissing climate change liability suits, including those brought under state law.

Myth #3: These lawsuits are also different from AEP because they do not seek to “regulate” fuels or emissions; they seek only money for harms caused by fuels. In fact, they explicitly disclaim any attempt to stop companies from producing, promoting and selling any fuels.

It is anathema to tort law—generally and under the tort of public nuisance—to suggest that a person or business is free to continue an activity that gives rise to liability. Nearly all torts, including public nuisance, apply only to wrongful conduct. A key purpose of liability is to change how a defective product is made or sold or to correct unlawful behavior.

To be clear, the Supreme Court has stated that “tort duties of care,” including under state law “directly regulate” products and conduct as much as legislation and regulation. Liability requires that the defendant wrongfully harmed the plaintiff and correct that wrongdoing. Such objective wrongdoing is essential for providing fair notice of what gives rise to liability and, importantly, how to avoid liability. In public nuisance, just as negligence, liability requires “unreasonable” conduct, though traditionally public nuisance required a “minor criminal offense.” As the Restatement of Torts, the preeminent tort law thesis, states: “If the conduct of the defendant is not of a kind that subjects him to liability . . . the nuisance exists, but he is not liable for it.”

In Kivalina, the plaintiffs made the same argument tried here, namely that liability can ensue without determining whether the defendants’ conduct was “reasonable or unreasonable” and the court can determine “who should bear the cost of that conduct.” The Ninth Circuit affirmed that the Supreme Court “instructed that the type of remedy asserted is not relevant,” so money damages is no different here than trying to directly regulate emissions. Neither is allowed.

It is surprising to see Dean Antolini make this argument now. She has written about failed attempts to change public nuisance that would have “[broken] the bounds” of the tort. See Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecol. L.Q. 755, 838 (2001). As she wrote then, the “unreasonableness of the defendant’s conduct” has been an “important judicial limitation on nuisance” claims. Id. at 771-72.

As courts have found, selling energy is not criminal or unreasonable. These products are staples of modern life. Judge Alsup, in dismissing the Oakland and San Francisco cases, explained these fuels have been the linchpin for “monumental progress.” The judge who dismissed a similar suit against the auto industry a decade ago also stated that manufacturers cannot be liable “for doing nothing more than lawfully engaging in their respective spheres of commerce.”

Myth #4: Alternatively, energy manufacturers can be liable for climate change because they knew their products contribute to climate change and promoted and sold them anyway.

Advocates of climate change litigation attempt to associate energy manufacturers with culpability by saying they should be liable for studying potential impacts of carbon emissions while promoting and selling their products to the public. Dean Antolini states the lawsuits are based, among other things, on the “over-production” and “over-promotion” of fuels.

This argument collapses on itself. On one hand, they suggest that promoting and selling a product with known harms is tortious conduct, but on the other hand, they say that the companies are free to continue producing, promoting and selling their products. Again, selling a product cannot be both unlawful and lawful. As Judge Keenan observed, manufacturing, promoting and selling products with known risks does not give rise to liability. Otherwise, there would be no limit to litigation, as many products have known public risks.

Balancing the utility of energy, which people rely on, with its externalities are public policy decisions requiring the weighing of a multitude of factors. After the oil crisis in the 1970s, the policymakers prioritized energy independence. Now, this priority is shifting to climate change. All the while, policymakers are attempting to keep energy prices affordable for most families and businesses. There are regional and international concerns as well. The need to balance these often-competing interests is why the Supreme Court said courts are ill suited for this job.

Myth #5: These lawsuits will mitigate climate change.

Environmentalists have said these lawsuits represent their frustration that Washington is not doing enough on climate change. They see these lawsuits as tactics that could penalize energy production, leading to huge increases in energy costs—what they call the “true cost” of fuels.

If these lawsuits cause U.S. energy costs to skyrocket, people already having difficulty paying utility bills will feel it the most. It also will force manufacturing overseas, where there may be few emission standards. America makes things cleaner and has made greater GHG reductions over the past decade than any other nation.

The solution to climate change is for local governments and Congress to work with America’s manufacturers on new technologies that reduce emissions and make energy more efficient and environmentally friendly. Innovation and collaboration, not litigation, has been the proven way America has brought about society-wide technological advancement. U.S. manufacturers have already been leading the way. The manufacturing sector has reduced its GHG emissions by 10 percent over the past decade, while its value to the economy has gone up by 19 percent.

Hawai’i has taken steps in this direction. In 2018, Governor David Ige signed legislation committing to lower GHG emissions and partner with the private sector to achieve environmental goals. The legislation established a “greenhouse gas sequestration task force that will look at programs and policies to help further a goal of reducing carbon emissions.” This is the type of responsible, forward-looking effort that should serve as a model for other communities.

Conclusion

MAP welcomes the opportunity to discuss this litigation, whether with Dean Antolini or her fellow advocates. Here is a link to a debate MAP participated in with Law Professor William Buzbee of the Georgetown Law Center sponsored by the Congressional Civil Justice Academy. MAP has found such events productive, cordial and highly instructive to people drawing conclusions and making decisions about this litigation. MAP looks forward to continuing this dialogue.