The flaws of municipal litigation to combat climate change was the theme of the June 15 Washington Legal Foundation webinar, which was titled “Climate Change Regulation by Litigation: Wise Use, or Misuse, of State and Local Resources.” The panel discussion featured MAP Special Counsel Phil Goldberg, who focused on the lack of any legal or factual foundation for the litigation, including under the public nuisance and consumer protection acts invoked in the claims. Goldberg was joined by Joseph Rainey Center for Public Policy President Sarah Hunt, ClearPath Energy Policy Advisor Matthew Mailloux, and Washington Legal Foundation Executive Director Glenn Lammi.
Goldberg outlined the state of play for climate litigation following the Supreme Court’s decision not to hear federal law issues presented in the Boulder case, which sends the cases back to state courts. With the jurisdictional question largely settled, he noted that the organizers behind the litigation are no doubt working overtime to recruit more state and local governments to file these suits because the organizers’ goal is to “put points up on the board” – regardless of whether the lawsuits can prevail. Ultimately, Goldberg said, courts should find that these lawsuits are not based on sound legal merits.
Goldberg also explained that manufacturers, more broadly, are concerned “about the precedent against manufacturers” this litigation could set, as it seeks to subject manufacturers for social, political and environmental issues irrespective of traditional liability principles, including causation. These lawsuits, he continued, also do nothing to meaningfully impact carbon emissions: “lawyers don’t make energy more renewable; we need innovators to do that.”
The Rainey Center’s Sarah Hunt was equally skeptical of climate litigation, arguing that these lawsuits would not mitigate carbon emissions. Rather than leverage the judicial system, Hunt offered several suggestions for wiser use of municipal funds instead of ongoing lawyer fees. She recommended hiring policy experts and staff to invest resources and apply for federal grants, reviewing building codes to incentivize and install energy efficient resources to power local communities, which are made available by the Infrastructure Investment and Jobs Act and the Inflation Reduction Act.
Finally, Mailloux argued it’s certainly achievable to reduce carbon emissions while also not attacking any individual fuel source. He notes the same companies that are being challenged in court are also some of the largest investors in next generation technologies.
Overall, the panel agreed that climate litigation is not a viable route to lower carbon emissions, and we must engage policymakers at federal, state, and local levels to responsibly address climate change.
A replay of the webinar can be viewed here: