MAP’s Phil Goldberg Participates in Hudson Institute Panel on Climate Litigation and the Supreme Court
On September 10th, 2024, the Hudson Institute hosted a panel, “The Implications of Climate Lawsuits for American Energy.” Over the past two decades, more than thirty states, counties, and municipalities have filed climate lawsuits under state public nuisance and consumer protection laws. These lawsuits, which seek damages for the alleged effects of climate change, have attracted the attention of the United States Supreme Court.
To discuss this topic, MAP Special Counsel Phil Goldberg joined the panel with C3 Solutions Chairman Drew Bond and Professor and Executive Director of George Mason’s Law and Economics Center at Scalia Law School Donald J. Kochan. The panel was moderated by Hudson Institute Senior Fellow and Director of the Initiative on American Energy Security Brigham McCown.
Here are a few highlights from the discussion:
MAP Special Counsel Phil Goldberg:
- “Climate litigation has been around for twenty years. Most people are focusing on the last eight years of litigation, but it goes back to 2004 with AEP v. Connecticut which went all the way up to the Supreme Court. Back then, the people behind the litigation freely admitted this was about their frustration with Congress and their agenda for how they wanted to solve this issue.”
- “Today, everybody’s out there trying to sue somebody over this issue as opposed to dealing with the issue in any kind of real and sustainable and material way.”
- “That’s why we don’t think [that when it comes to climate change] you can just throw all this legal spaghetti on the wall and see what sticks. You have to figure out the right processes for what you’re trying to do [on climate policy] and if you’re not successful, that doesn’t mean you just throw spaghetti somewhere else.”
Chairman and CEO of C3 Solutions Drew Bond:
- “This idea that the government or the courts should get involved in stepping in to fill in the gaps is quite dangerous. It’s really critical that we have this discussion around the real tradeoffs of climate solutions and the fact that litigation is not what we need more of—innovation is.”
- “Litigation is not the answer to climate change. Does it make things worse? Yes, it makes things worse.”
- “We need more economic freedom, not less, in order to innovate more in order to solve the climate challenge.”
- “We have reduced greenhouse gas emissions faster than any other county in history by having access to clean, affordable natural gas. That happened not because the government said so, but because an entrepreneur went out and took risks.”
Professor and Executive Director of Law and Economics Center at Scalia Law School Donald J. Kochan:
- “The [American Electric Power v. Connecticut] decision . . . said that Congress has displaced federal common law, and the federal courts are incapable of developing common law for climate change lawsuits because we have entrusted the Clean Air Act and other avenues through political branches to solve this. They have indeed preempted those claims.”
- “Courts are meant to resolve real disputes. Courts are there to say what the law is, not what the law should be – not to create rules and not to expand over time.”
Moderator and Hudson Institute Senior Fellow and Director of the Initiative on American Energy Security Brigham McCown:
- “In early June, the U.S. Supreme Court invited the Justice Department’s Solicitor General to file a brief in a case expressing the view of the United States. The outcome of these lawsuits will have a quite significant impact on legal, foreign policy, domestic policy, congressional and public governance as well as potential implications for innovation.”