Last week, the Manhattan Institute issued a report titled, “Trial Lawyers, Inc.: Think Globally, Sue Locally,” which details how localities and states are creating an alliance with the trial bar to use speculative, high-stakes litigation to shape national economic and social public policies. The report shows how these attorneys cultivate “symbiotic relationships” with government officials who are gatekeepers to potential large payouts. The report extensively covers climate litigation, including a chapter titled, “Uncertain Climate: States and Localities Sue Over Global Warming.”
Below are some key quotes from the report describing how climate change lawsuits and other similar cases violate the appropriate process for making public policy in their respective areas.
- The litigation “effectively works as an end run around the appropriations power of state legislatures” with a “whiff of a ‘pay to play’ odor to the whole operation. In many cases, state and municipal officials relinquish much of their authority over the lawsuits—putatively on behalf of the public—to the private lawyers they’ve hired.”
- “But such rule-of-law, separation-of-powers, and appearance-of-corruption concerns are only part of the problem. In case after case, states and localities have sought to use lawsuits, often predicated on dubious legal theories, to resolve national controversies— sometimes in direct conflict with laws that Congress has enacted.”
- “State litigation contracted out to private parties thus inverts normal federalism and allows states and localities the power to direct national policy, as an end run around Congress’s constitutional authority to regulate interstate commerce—especially for nationally controversial policy concerns, such as guns and climate.”
- “Cases settle largely because of the massive potential damages at risk, not because of the legal merits. … These issues are particularly acute when lawsuits are premised on nebulous ‘common law’ theories like public nuisance, which predate the modern regulatory state.”
- “As Justice Ruth Bader Ginsburg observed for a unanimous Supreme Court in rejecting federal-law public-nuisance litigation to regulate climate change, ‘judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.’”
- “Lawsuits for money damages also encourage outside private lawyers to prioritize payouts over solutions. Similar temptations abound for state officials when they can hold on to settlement dollars to pad their agency or departmental budgets or allocate their budget dollars without legislative oversight.”
Overall, this report provides a valuable documentation of the campaign behind this litigation and the legal and social norms it violates. MAP has chronicled some of these same concerns in our “Beyond the Courtroom: A Closer Look at Climate Litigation in the United States” report.