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E&E News: Lawyer says ‘super-torts’ won’t fix climate change

Climate litigation is trending. From corporate deceit lawsuits to sweeping constitutional claims, plaintiffs around the world are raising critical climate change issues in the courts.

Climate nuisance lawsuits — a clash of established legal theory and new climate questions — have captured the attention of American activists, industry foes and court watchers alike as states and local governments sue oil and gas companies to help pay for damage they blame on unchecked emissions.

They are currently grappling with the oil industry over whether the cases should be heard in state or federal courts. Proponents say public nuisance law — common law that protects against wrongdoing that causes damage to the public — is ideal to address the damages knowingly exacerbated by fossil fuel companies that knew for years their emissions contributed to global warming.

But critics like attorney Phil Goldberg say that nuisance law offers no such justification for climate cases, adding that broad climate solutions are the responsibility of government, not the courts.

Goldberg is managing partner at Shook, Hardy & Bacon LLP in Washington, D.C., and serves as special counsel for climate change litigation for the Manufacturer’s Accountability Project, which advocates for industry interests in climate nuisance lawsuits. Goldberg has filed multiple “friend of the court” briefs on behalf of oil and gas companies in those cases, and his firm has also represented industries like Big Tobacco in other liability cases.

In a career spanning public liability issues, he has focused attention on the novel use of public nuisance and product liability law.

Public nuisance law is a time-honored counter to local disturbances that do public damage, but Goldberg insists it was never meant to accommodate lawsuits against companies and emissions with global effects.

He said that bringing climate lawsuits under tort law — law that is brought against a party who wrongs or damages another party — doesn’t work because the production and sale of oil and gas products aren’t illegal behavior.

“Think like protecting the town square and the right for people to use public roads,” Goldberg said of the law’s boundaries. “[Nuisance law] never had anything to do with any kind of product sales, promotion, or any kind of national or international issues.”

He sat down with E&E News this week to discuss climate nuisance litigation and what the government should do to change policy.

The full article can be read here.