MAP’s Phil Goldberg Participates in Washington Legal Foundation Panel, “Judicial Regulation of Climate Change?: Latest Developments in State-Based Litigation”

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The Washington Legal Foundation recently hosted a webinar, “Judicial Regulation of Climate Change?: Latest Developments in State-Based Litigation,” to provide an in-depth discussion on climate litigation, recent court decisions, and commentary on the future outlook in these cases. 

MAP Special Counsel Phil Goldberg criticized state lawsuits for misusing public nuisance law and commented on recent court dismissals in various state courts.  Alan Wilson, South Carolina’s Attorney General, and Matthew Leopold, Partner at Hunton Andrews Kurth LLP and former EPA General Counsel, were featured on the panel. Glenn Lammi of the Washington Legal Foundation moderated the discussion. 

Here are a few highlights from the discussion: 

MAP Special Counsel Phil Goldberg:

  • “These cases are governed by federal law, not state law, because you’re dealing with interstate or international emissions that you can’t hold just a handful of energy companies liable for emissions that have gone around the world for hundreds of years.”
  • “There’s about three dozen of these lawsuits around the country, some by local governments, like towns, some by counties, some by states, and it’s starting to look a little bit like legal spaghetti being thrown at the wall to see what sticks.”
  • “The climate lawsuits are being brought under a variety of legal theories; public nuisance was the first theory out of the box that hasn’t proved to be very successful.”
  • “When you’re talking about national energy policy, you want to focus on affordability, on energy security, on climate, and other environmental issues. And courts just can’t do that when you’re dealing with these lawsuits.”
  • “If successful, these cases are going to increase the price of energy for everybody. Because if all of a sudden we’re relying on the energy companies to provide funding for climate adaptation all around the country, then it’s going to cost a lot more.”

Attorney General, State of South Carolina, Honorable Alan Wilson:

  • “This is an issue that we’ve been dealing with for years when states and local municipalities are bringing local tort laws like public nuisance, and they’re using it to dictate federal or national environmental policies that cross state boundaries.”
  • “You always have to balance the power or the interest of those competing sovereigns. The federal government is a sovereign. Each individual state is its own sovereign, and you have those relationships that go between them.” 
  • “The Charleston, South Carolina case was a case in which the city of Charleston sued a bunch of oil companies, asserting state law claims like public and private nuisance, but the lawsuit raises serious constitutional concerns over the equality of the state and the need for a uniform federal rule to resolve the issue.”

Click here to watch the webinar.