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National Law Journal: Climate Change Requires Collaboration, Not Courtroom Brawls

by Phil Goldberg

The U.S. Court of Appeals for the Third Circuit is about to hear climate lawsuits by Delaware and the city of Hoboken that could increase energy costs and take climate policy out of the hands of federal lawmakers. These cases are part of an effort by two dozen local and state governments to force energy companies to give them money for local climate impacts. If the lawsuits are successful, Americans, who already face elevated energy prices, will see prices go up even more.

The challenge for each of the governments suing is getting around a decade-old ruling by the U.S. Supreme Court that rejected attempts to impose liability on energy companies for climate change. In that case, American Electric Power v. Connecticut, the court said climate change policy is a federal and regulatory question—not one for the courts.

The Supreme Court understood that liability questions in climate cases are intertwined with national and international policies over the production and sale of energy, as well as emissions from sources around the globe over the past 150 years. The court explained that Congress and federal agencies are uniquely equipped to balance the factors that go into America’s energy policy, including energy independence and affordability, and using state law to determine any of these issues “would be inappropriate.”

The current wave of climate litigation plainly conflicts with these Supreme Court statements. And if these suits were to succeed, the implications would be troubling for American consumers and businesses. For example, these lawsuits could hinder the federal government’s ability to make energy-related decisions critical to our national security—issues that have taken on significant importance in the past few months.

These lawsuits would also lead to a rise in energy prices for American families and businesses. A lawyer representing some of the local governments has said a large part of the reason he and others are pushing these lawsuits is to hold “oil consumers responsible.” That’s code for creating a backdoor penalty on our energy use. They want to make it more expensive for us to put gas in our cars, heat and cool our homes and power our workplaces—even if we can’t afford it.

For their plan to work, the state and local governments crafted their complaints to try to avoid federal courts and hope a state court will ignore the Supreme Court’s caution signs. So they allege the energy companies violated state laws in developing and selling fossil fuels, leading to local climate damages. They have told the federal courts their cases have nothing to do with national or international energy production or carbon emissions.

Their own lawsuits, though, belie these assertions, something that has not escaped notice of federal judges in many of the hearings that have been held so far in this litigation.

For example, a judge sitting in the U.S. Court of Appeals for the Fourth Circuit noted that the climate case brought by Baltimore repeatedly mentioned fossil fuel “production.” He asked Baltimore’s lawyer: “Wouldn’t you be better off just to delete ‘production’ from your complaint?” But the inclusion of “production” is no typographical error. The lawsuits deliberately allege harm from the production and use of fossil fuels.

Similarly, there is no denying these cases are about global emissions. Although lawyers for the cities and states have insisted that their cases are not about fossil fuel emissions at all—again because regulating carbon emissions is the province of the federal government—they also repeatedly say the cases are about how defendants’ conduct has “exacerbated emissions.”

In one telling exchange, a judge on the U.S. Court of Appeals for the Eighth Circuit asked Minnesota’s lawyer: isn’t your entire theory of causation based on interstate carbon emissions? The attorney did everything he could to avoid the word causation, saying, carbon “emissions is the avenue of the source of injury.” Here, avenue is just another word for cause.

At least one federal appellate court has seen through this doublespeak: last year, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of New York City’s climate lawsuit. It said, “we are told that this is merely a local spat about the City’s eroding shoreline, which will have no appreciable effect on national energy or environmental policy. We disagree. Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”

Ultimately, none of these lawsuits will help in the fight against climate change. There is no suing our way to the future, and pricing gas and electricity out of the reach of many Americans is not viable. Local and state governments should drop the lawsuits and work with the manufacturing community on the critical technologies that will drive the clean energy economy of the future.

Phil Goldberg is a special counsel to the Manufacturers’ Accountability Project and the office managing partner of Shook, Hardy & Bacon in Washington, D.C.

Read the full editorial here.