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Panel of Legal Experts Agree: Climate Litigation Lacks Legal Viability, Improper Solution to Important, Complex Issue

The Rule of Law Defense Fund gathered a seasoned and broad panel of legal experts in Washington, D.C. for a discussion of the current climate change litigation landscape. South Carolina Attorney General Alan Wilson served as the event’s keynote speaker, and the panel featured Andrew Grossman, partner at Baker Hostetler; Phil Goldberg, managing partner at Shook Hardy & Bacon; Donald Kochan, Parker S. Kennedy Professor in Law at Chapman University Dale E. Fowler School of Law; and Walter Olson, Cato Institute senior fellow.

The discussion was kicked off by Attorney General Wilson, who highlighted the growth of municipal engagement to weaponize public nuisance lawsuits that target a variety of industries. Attorney General Wilson noted that in today’s political arena people are looking beyond the legislature at the judiciary to drive policy.

Andrew Grossman demonstrated the complexity of this issue as he outlined the path of worldwide energy production from origin to consumption. Grossman also discussed the current litigation state of play while questioning how courts account for the benefits of fossil fuels, including the lives saved because of energy availability.

In his remarks, Walter Olson noted that “this is not the first time we have seen this script.” Olson walked the audience through the history of cases that wrongfully used public nuisance suits. To better paint a legal picture of public nuisance law, Olson used an example of suing your neighbor over bothersome smoke from their chimney, but not suing the firewood producer. The determination of liability is a critical part of all lawsuits, he emphasized.

Next, Professor Donald Kochan touched on the separation of power problems with climate litigation. Kochan reminded the audience, “We ask that judges only interpret laws, not make them.”  He argued there is the need for federal agency involvement, public participation and evidence based analysis to tackle an issue like climate change; for these reasons the legislature is at a distinct institutional advantage to craft effective policy that a court ruling cannot.

In his remarks, Phil Goldberg, who also serves as the Manufacturers’ Accountability Project special counsel, called the climate litigation cases “old wine in a new bottle” as a network of donors, nonprofits and law firms look for ways to re-package litigation in an effort to get around the Supreme Court precedent of AEP v. Connecticut. He closed the discussion by reminding people that “we can’t litigate our way out of climate change” and noting that manufacturers are all in on climate change solutions based on innovation and technology.

The video of the event can be found here.