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MAP Leads International Discussion on Climate Litigation

On Monday, January 20, MAP Special Counsel Phil Goldberg elevated the Manufacturers’ Accountability Project and manufacturers’ priorities to a global stage, participating in a lively panel discussion on international climate change litigation. The panel was held in London and was co-hosted by the British Institute of International and Comparative Law (BIICL) and the International Association of Defense Counsel (IADC). The other panelists on climate litigation included Stijn Franken of Nauta Dutilh in Amsterdam, Netherlands and Sylvie Gallage-Alwis of Signature Litigation in Paris, France.

Goldberg put an international spotlight on the litigation threat facing manufacturing in America, particularly in the area of climate change. He explained that there is a consensus that something has to be done on climate change and that the “challenge facing all of our countries is figuring out how to sustain modern life while mitigating our impact on climate, which requires collaboration and innovation on a massive scale.” By contrast, he continued, the litigation in the U.S. largely seeks to single out energy manufacturers for blame. “In the United States, the litigation is seen as a narrow attempt to blame the energy industry for making and selling us the energy we all want and use.”

Goldberg walked the audience through the history of U.S. climate litigation, starting with the first round of lawsuits that culminated in the 2011 U.S. Supreme Court ruling dismissing the claims in AEP v. Connecticut. He discussed the concerted effort by the proponents of the litigation to repackage the lawsuits starting at the La Jolla Conference in 2012, and the current climate litigation campaign being waged in the courts and media since 2017.

He noted that the “biggest fallacy” the plaintiffs are putting forward in this round of litigation is their claim that these lawsuits are not trying to regulate energy production or emissions. Specifically, the lawsuits say energy manufacturers can keep selling and promoting fuels even if they are liable for climate change. As Goldberg explained, “They can’t have it both ways. Selling and promoting energy is either a public nuisance that must be stopped, or it is lawful and can continue. It can’t be lawful and unlawful at the same time. That’s one of the main reasons this litigation makes absolutely no sense from a legal perspective.”

Goldberg also discussed why the MAP is focused on pushing back against this senseless litigation: “Manufacturers of all kinds have concerns about these lawsuits. They see this litigation as an attempt to scapegoat manufacturers for broad political, social or environmental matters. It goes far beyond just energy manufacturers.”

Before Goldberg spoke, Mr. Franken tracked the developments of the United Nation’s Intergovernmental Panel on Climate Change reports, key scientific assertions and conclusions, and the major treaties spurring international efforts to mitigate climate change. He spent most of his time on the recent ruling by the Netherlands high court allowing a claim against the Netherlands government over its climate public policies that is based in human rights law. The court determined that it could hold the Dutch government to its commitment to reduce emissions by 25% per 2020, but that it is a political question for the Executive and Parliament to decide how to achieve that goal.

Ms. Gallage-Alwis briefed the group on developments in the European Union and its litigation against member states. Specifically, she discussed actions by the EU Commission against Bulgaria, Poland, France, Italy, Spain, Germany and the United Kingdom. For example, she noted that in October 2019, the European Court of Justice “ruled that the mere fact that levels of pollution are higher than what regulation provides for constitutes a breach of said regulation, irrespective of all the measures implemented by the State to reduce emission levels.” She then cautioned against the potential rise of eco-anxiety litigation by citizens against governments, including in her native France.

In addition to the speakers on climate litigation, Shook Hardy & Bacon partner Mark Behrens discussed key mass tort developments in the United States on non-climate topics. MAP would like to thank the IADC, BIICL and the other panelists for hosting and participating in this event, which was attended by lawyers from across Europe.