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E&E News: Lawyer says ‘super-torts’ won’t fix climate change

Climate litigation is trending. From corporate deceit lawsuits to sweeping constitutional claims, plaintiffs around the world are raising critical climate change issues in the courts.

Climate nuisance lawsuits — a clash of established legal theory and new climate questions — have captured the attention of American activists, industry foes and court watchers alike as states and local governments sue oil and gas companies to help pay for damage they blame on unchecked emissions.

They are currently grappling with the oil industry over whether the cases should be heard in state or federal courts. Proponents say public nuisance law — common law that protects against wrongdoing that causes damage to the public — is ideal to address the damages knowingly exacerbated by fossil fuel companies that knew for years their emissions contributed to global warming.

But critics like attorney Phil Goldberg say that nuisance law offers no such justification for climate cases, adding that broad climate solutions are the responsibility of government, not the courts.

Goldberg is managing partner at Shook, Hardy & Bacon LLP in Washington, D.C., and serves as special counsel for climate change litigation for the Manufacturer’s Accountability Project, which advocates for industry interests in climate nuisance lawsuits. Goldberg has filed multiple “friend of the court” briefs on behalf of oil and gas companies in those cases, and his firm has also represented industries like Big Tobacco in other liability cases.

In a career spanning public liability issues, he has focused attention on the novel use of public nuisance and product liability law.

Public nuisance law is a time-honored counter to local disturbances that do public damage, but Goldberg insists it was never meant to accommodate lawsuits against companies and emissions with global effects.

He said that bringing climate lawsuits under tort law — law that is brought against a party who wrongs or damages another party — doesn’t work because the production and sale of oil and gas products aren’t illegal behavior.

“Think like protecting the town square and the right for people to use public roads,” Goldberg said of the law’s boundaries. “[Nuisance law] never had anything to do with any kind of product sales, promotion, or any kind of national or international issues.”

He sat down with E&E News this week to discuss climate nuisance litigation and what the government should do to change policy.

The full article can be read here.

Fox & Hounds: Climate Litigation Brings Divisiveness Instead of Unity to California

In the run-up to the 2020 election, voters have been tuning in to a series of debates, and town halls featuring the Democratic candidates, several of which were dedicated solely to global warming and climate change (GWCC). However, new polling found GWCC “barely registers as a priority issue.” Voters are more concerned about the economy, jobs and healthcare. California voters share those same concerns with added worries about the state’s homelessness crisis. In New York they are concerned about economic development and every day issues like road paving.

Then why have local officials in California, New York City, and elsewhere chosen to sue energy companies over climate change, an issue low on the list of voters’ priorities? No rational person disputes that climates are always changing.  Nor does any rational person dispute that we must also address the issue of climate change. The debate then becomes how we take on this global challenge. At the recent United Nations climate summit, 500 scientists sent a letter urging leaders to follow a climate policy based on “… realistic economics and genuine concern for those harmed by costly but unnecessary attempts at mitigation.” Litigation fails to meet these criteria. 

These lawsuits—and ones filed in Colorado, Maryland, Washington State, and Rhode Island—utilize the legal theory of “public nuisance.” Plaintiffs’ attorneys working on a contingency fee basis who stand to pocket millions should they find courtroom success in are driving this litigation.

The San Francisco, Oakland, and New York City cases were dismissed last year, but are currently under appeal in federal circuit court. Now conflicting legal rulings in five, state-level, district courts could bring muddied legal decisions. To date, courts are unsure where to adjudicate these weather-related claims; or whether voters, city councils, legislatures, Congress, and the U.S. executive branch should decide energy policies.

The full article can be read here.

Connecticut Post: CT’s business climate already suffering; frivolous climate lawsuits won’t help

It’s no secret that Connecticut has a ways to go to be more friendly place to do business. Our state has the second highest tax rate in the U.S. and had three of the slowest-growing urban job markets in the entire nation over the past five years. According to the Tax Foundation’s 2019 State Business Tax Climate Index, we rank No. 47 overall, coming up dead last in property taxes and scoring similarly poor on other measures. Cities like Hartford, New Haven and Bridgeport are growing slowly relative to other large and mid-size cities in the U.S.

The new isn’t all bad, of course. Connecticut’s unemployment has fallen to just 3.8 percent, despite anemic growth in jobs. And while this is cause for some optimism, it comes on the heels of Cigna, a major employer in the health insurance sector, threatening to leave the state just as others have in recent years.

With this in context in mind, one thing should be clear. Connecticut should do everything possible to avoid other negative impacts on the business climate. This includes frivolous litigation targeting manufacturers that could further drive companies from our state.

In recent years, local governments from coast to coast have joined with for-profit trial attorneys to label manufacturers as “public nuisances” when it comes to climate change, attempting to score big paydays by linking manufacturers to rising sea levels and other climate change symptoms. Landmark lawsuits in San Francisco and Oakland, as well as in New York City, have employed the strategy of using courts, as opposed to our elected officials, to litigate climate change. Of course, the real motive is money. City officials are trying to collect money for infrastructure and they are suing energy manufacturers by partnering with profit-motivated trial attorneys seeking a big payday for themselves.

Fortunately, this strategy of labeling manufacturers as “public nuisances” has repeatedly failed in the courts. In fact, three significant cases were dismissed in 2018 by federal judges. In the case of San Francisco and Oakland, Judge William Alsup of the U.S. District Court for the Northern District of California last June dismissed the climate lawsuits filed by these cities. Alsup wrote that climate change issues “demand the expertise of our government agencies, our diplomats, our Executive, and at least the Senate.” The place for such issues, he reasoned, was certainly not the courts.

The full article can be read here.

RealClear Markets: The Deeply Destructive Climate Change Litigation Game

Voters and their elected representatives can be stubbornly uncooperative with interest groups pursuing the achievement of specific policy ends. “Heavy lifting” is the only way to describe an effort to forge a Congressional coalition in support of specific legislation, and “herculean” is the proper adjective for a campaign to elect legislative majorities inclined to support it.

This is particularly the case in the context of climate policies intended to reduce emissions of greenhouse gases (GHG). Such legislative efforts have been rejected by voters and by Congress several times. So what is a pressure group convinced of the truth of its climate arguments, the urgent necessity of its own policy aims, and the nefarious nature of its opponents—“Big Oil”— to do?

For much of the policy community arguing the crucial imperative of “action” on greenhouse gas (GHG) emissions and the perfidy of the oil industry, this gordian knot can be cut only with litigation, that is, policymaking by the judiciary. A central example of an organization advocating such climate litigation at the municipal level and among state attorneys general calls itself Climate Communications and Law (CCL), about which more below. The behavior and motivations of such groups as CCL deserve far more scrutiny than reporters and other observers have offered.

The full article can be read here.

Florida Record: Report details funding of climate change litigation through well-heeled foundations, non-profits

Organizations and attorneys involved in legal action against companies over the impact of climate change are being supported and funded by a network of non-profit foundations, according to a new report.

Several legal actions, by municipalities, counties, and states, are ongoing against the fossil fuel industry that either argue they are liable for costs to mitigate against the impact of climate change, or, as in New York, it is claimed investors were misled because a company, ExxonMobil, knew decades ago of the potential damage, but did not reveal what it knew.

The Manufacturers’ Accountability Project, set up in 2018 by the National Association of Manufacturers to argue against, and combat, climate change litigation recently published a report on the funding of some of the legal actions.

“Far from a David-versus-Goliath endeavor, this effort is being waged by a coordinated network of individuals, nonprofit organizations and academics, and is backed by some of the most powerful private funders in the United States,” the report concludes.

The report notes that the Niskanen Center, which it is claimed is involved in a lawsuit in Boulder, Colorado, has “received at least $3.37 million from the William and Flora Hewlett Foundation, Rockefeller Brothers Foundation (RBF), and Energy Foundation since 2015.”

The full article can be read here.

Florida Record: State think tank backs Fort Lauderdale’s climate change decision

A Florida public policy organization supports the recent decision by Fort Lauderdale city officials to forgo involvement in climate change litigation.

Sal Nuzzo, vice president of policy at the James Madison Institute in Tallahassee, said it’s the right choice for taxpayers.

“If I were a resident of Fort Lauderdale, I would be reassured that my local government was not wasting my tax dollars pursuing litigation that’s absolutely going to fail,” he said.

Nuzzo noted that the U.S. Supreme Court ruled unanimously nearly a decade ago, a decision that essentially stated that Congress would be the appropriate branch of government to address the issue.

“Both from a practical standpoint and a separation of powers standpoint – and in terms of the legal ruling at the federal level – it is not a wise path for a city or a county to pursue litigation against either oil companies or whomever relevant to climate change,” Nuzzo said.

It isn’t clear whether Fort Lauderdale had held any public hearings on the matter. The city was approached last year by an environmental advocacy group, but it chose not to move forward with any action.

At the same time, attorneys for the advocacy group are continuing to consult other municipalities in Florida and elsewhere.

“It is my hope that cities and counties and state governments will look for innovation and technology and partner with the business community to address the challenges presented in climate change,” Nuzzo said.

The full article can be read here.

Providence Journal: R.I. lawsuit offers no solutions

A federal court’s decision to let a climate change lawsuit against energy manufacturers go to state court was touted by supporters as a “big win.” But this push to legally brand the marketing and sale of products necessary to modern life as a “public nuisance” is still ultimately doomed to fail. Why? This public nuisance playbook has been deployed in the past in Rhode Island, last time against former paint manufacturers, and the state Supreme Court unanimously dismissed the suit as violating “basic fairness.”

Rhode Island is not alone in its attempt to use the court system to blame energy manufacturers for the global issue of climate change. New York City, San Francisco and Oakland brought cases that were swiftly dismissed by federal trial courts last year. Other municipalities are adapting their strategies, hoping to fare better by trying to keep their claims in state courts.

What Rhode Island and these cities fail to acknowledge is that climate change is an inherently global issue. The judges who threw out the three climate liability cases last summer emphasized that climate change is a federal issue best resolved by Congress and the federal agencies, not courts at either the federal or state levels.

So how is Rhode Island attempting to make the case that climate change is an issue that can be litigated under state law? They argue that the energy manufacturers violated state law in promoting and marketing their products in Rhode Island, such as by not warning about the impacts of energy on climate change.

What Rhode Island fails to mention is that energy products are highly beneficial, and families and businesses need affordable energy.

When dismissing San Francisco and Oakland’s climate lawsuits, Judge William Alsup of the Northern District of California emphasized the importance of these products. He told the courtroom that we “would have lost” World War II if it were not for these fuels. Even today, Rhode Islanders remain overwhelmingly reliant on the very fuels implicated in these lawsuits to power and heat their homes and businesses. So, it is odd that the state seeks to pin liability on those who have supplied what the state so urgently needs.

The full article can be read here.

California Political Review: Combatting Climate Change Beyond the Courts

Climate Change is the single most pressing problem addressing our planet. Increasing global temperatures have the potential to flood our cities, cause fires to burn our homes and forests, and lay waste to environments that need to thrive to support human, animal, and plant life. As a mother, I want a safe and habitable planet for my children, their children, and future generations.

I recently participated in a panel put on by the Progressive Policy Institute, a Washington, DC based think tank focused on promoting “radially pragmatic” ideas. The panel explored whether litigation was an effective tool to combat climate change.

My take is that litigation is an inefficient and inelegant way to combat climate change. Instead, we should urge our law and policy makers to promote innovation at the state, local, and federal level to reduce greenhouse gas emissions to address climate change. We should use the power of government and the press to share ideas that work – based on shared responsibility – rather than target a few manufacturers to pay for a problem that we have all helped cause.

Most climate change lawsuits rely on a public nuisance theory of law, rather than traditional tort liability. Public nuisance law can best be understood as the opposite of a public good – it is a public bad. Unlike traditional tort lawsuits, which are based on individual harms – you hit me with your car so I will sue you to pay my medical bills – public nuisance theory relies on a bad harm to all of us. Historically, it was used to punish someone who polluted the town well, or who blocked access to the bridge. There is no countervailing good to the public nuisance activity.

The full article can be read here.

Wall Street Journal: State AGs’ Climate Cover-up

Voters are spurning alarmist climate agendas at the ballot box, so U.S. progressives have turned to state attorneys general to litigate against fossil fuels. But the plan is backfiring as an ethically dubious program involving private-interest funding of state AG staff is being confronted in court.

Readers may recall a curious arrangement in which NYU Law School’s State Energy and Environmental Impact Center (SEEIC) finances the salaries and benefits of legal fellows in the New York Attorney General’s office as “special assistant attorneys general.” The program began in 2017 and is bankrolled by Bloomberg Philanthropies.

Funding is only available to state AGs committed to “advancing progressive clean energy, climate change, and environmental legal positions,” according to the group’s August 2017 email to numerous AGs obtained by Chris Horner, a former fellow at the Competitive Enterprise Institute. In other words, an outside group is funding legal services for AGs who pursue the group’s political priorities.

The SEEIC says the fellows’ work is directed by AGs and not the SEEIC, but questions about the group’s influence on law enforcement are being raised in court. One of the New York AG fellows, Matthew Eisenson, signed the state’s October suit against Exxon Mobil , which alleged the company misled investors about the risks of climate-change regulations to its business.

Exxon has produced millions of pages of documents since former New York Attorney General Eric Schneiderman began investigating the company in 2015 and now wants more information regarding the office’s communications with outside groups. Yet AG Letitia James is dodging transparency regarding her office’s SEEIC relationship.

Exxon alleges that the office’s “acceptance of fellows” from SEEIC “generates a conflict of interest,” and that New York’s “investigation of, and enforcement action against, ExxonMobil are driven by improper motives,” according to a brief Exxon filed last month. The AG is challenging Exxon’s discovery requests, and a hearing is scheduled for June 12.

The full article can be read here.

Honolulu Star Advertiser: Court ruled against climate-change lawsuits

I expect activists to believe their propaganda, but not well-respected law school faculty. Denise Antolini could not be more wrong in saying that suing energy manufacturers over global climate change was somehow “tried-and-true” (“Climate change litigation for Hawaii?,” Star-Advertiser, Island Voices, May 5).

The Supreme Court, in a unanimous decision written by Justice Ruth Bader Ginsburg in 2011, warned against any such lawsuits, saying there is “no room” for litigation over climate change public policy. Since then, several federal courts and judges have refused to blame America’s energy manufacturers for global climate change, saying there is no legal wrong that needs to be remedied.

The better path is for communities to join manufacturers who are working on new technologies for reducing climate change emissions and impacts. Innovation, not baseless lawsuits, has always been the way our country has brought about the type of societal – wide advancements needed here.

The letter to the editor was published in the Honolulu Star Advertiser here.

Phil Goldberg

Special counsel to the Manufacturers’ Accountability Project