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Capital Gazette Op-Ed: Earth Day should be about renewing call for climate innovations, not litigation

by Phil Goldberg

The theme of Earth Day 2022 is “Invest in Our Planet.” We all — businesses, governments, and citizens — are being called upon to “act boldly,” “innovate broadly” and “implement equitably.”

In today’s sensationalized political and media climate, it’s easy to lose sight of the meaningful work manufacturers are doing to address climate change.

This “act boldly” and “innovate broadly” approach has been working. The cost of wind and solar farms has fallen dramatically while output has soared. Cars, airplanes and factories have all become more efficient. And, over the past decade, manufacturers have increased productivity and reduced greenhouse gas emissions. This is just the beginning.

Instead of investing in these efforts to reduce emissions, some local officials and plaintiffs’ lawyers are engaging in a litigation campaign trying to blame climate change on the companies selling us the oil and gas we use every day. Baltimore was one of the first to file a climate lawsuit, and Annapolis and Anne Arundel County have joined this effort. This litigation, though, will do more harm than good in the fight against climate change.

The U.S. Supreme Court pointed out the problems with these types of lawsuits a decade ago: they try to make courts craft America’s energy policy, which is something the judiciary is ill-equipped to do. Oil and gas are necessary to our everyday lives, and courts do not have the tools to weigh the factors — from making sure energy is affordable for Americans to national security considerations — that must be part of figuring out how to address the changing climate.

Kathleen Curry, a former Democratic leader in the Colorado legislature, recently expressed similar concerns about Boulder’s climate lawsuit and what it means for Colorado families and businesses. “If these lawsuits mean gas will go to $7 or $10 a gallon” — as companies pass the lawsuits’ costs onto consumers — ”many people won’t be able to afford to even drive to work. That’s not a solution that is viable for, or fair to, hard-working Coloradans” — or Marylanders.

There are also national security concerns with these lawsuits. As Curry also pointed out, the lawsuits “target only American, Canadian and European energy companies” and give large state-owned fossil fuel companies in Russian, Saudi Arabia and other non-Western countries a free ride. Why would we sue ourselves? Wouldn’t that make us more dependent on foreign energy and less in control of our energy future?

Finally, and important to this year’s Earth Day themes, these lawsuits will hinder, not advance the effort to “innovate broadly.” As economist Wayne Winegarden wrote in Forbes recently, there is a disconnect between driving massive investment in new energy technologies and suing companies for selling us current energy technologies. The message to investors is: Beware! You will be sued as soon as your new technology is no longer good enough.

Indeed, the federal appellate court that dismissed New York City’s climate lawsuit said the litigation “ignores economic reality.” These lawsuits will also drive energy production to places with less of a commitment to the climate than we and our allies have. Selling us the energy we need simply should not be turned into a liability-inducing event.

Today’s climate litigation is not about investing in our planet. It’s about pointing fingers and playing climate politics. As this year’s Earth Day themes recognized, innovation — not litigation — is the better way to protect our future.

Phil Goldberg is special counsel to the Manufacturers’ Accountability Project and the office managing partner of Shook, Hardy & Bacon, LLP. He resides in Maryland.

Read the full column here.