Last month, MAP’s Special Counsel Phil Goldberg participated in a Law & Economic Center conference focused on public nuisance law and the novel ways trial lawyers are using tort theory to sue manufacturers for a variety of social, economic and environmental issues. It included speakers from all sides of the litigation.
Goldberg participated in the panel titled, “Public Nuisance—Climate Change Applications.” He was joined by Matt Pawa of Seeger Weiss, an original architect of climate litigation against the energy sector; defense attorney Mark DeLaquil with Baker Hostetler; Professor J.B. Ruhl of Vanderbilt University Law School; and Professor Jonathan Adler from Case Western Reserve University School of Law. Justice Anne K. McKeig of the Supreme Court of Minnesota moderated the panel. The audience included about 150 federal and state judges, Attorneys General and staff.
Pawa kicked off the discussion, making the case for why he believes public nuisance provides a viable way to sue energy manufacturers for “causing” global climate change. Goldberg followed, agreeing that climate change is a serious problem that needs to be addressed, both globally and locally, but explained that this litigation will not solve climate change. Rather, these cases have no legal foundation in public nuisance or any other legal theory—as courts have already found—and are an unproductive distraction from getting meaningful things done, Goldberg added.
Goldberg discussed why this litigation, which tries to impose national public policies on climate outside of the legislative process, is not a proper use of the courts. He also explained why the legal theories asserted in these cases simply do not give rise to liability here:
“The plaintiffs’ lawyers chose public nuisance and consumer protection acts for this expansive litigation because these causes of action have vague terminology—intentionally—so they can be applied to a wide variety of scenarios, but only in specific types of situations. Public nuisance applies to all sorts of local disturbances, and consumer protection acts make sure someone gets what they paid for, regardless of the product. Addressing global climate change has nothing to do with either situation. But, the plaintiffs want to apply the vague terminology of these liability theories anyway. As courts have found, there simply is no legal support for that.”
DeLaquil followed Goldberg and told the audience that courts are not buying these legal theories and explained why. In particular, he discussed the U.S. Court of Appeals of the Second Circuit’s recent decision that dismissed New York City’s initial climate case this past spring. In its ruling, the Second Circuit stated that the litigation “ignores economic reality” and that it is improper to use state litigation to circumvent Congress and the federal agencies on public policy questions.