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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

The Daily Caller: Scoop: Climate Crusaders Meet Their Match As Canada Nixes Plan To Sue Oil Companies

Canadian officials voted down a measure Sunday that would have opened up the possibility of engaging in a climate lawsuit holding major oil companies responsible for costs associated with wildfires and other natural disasters.

Officials from Vancouver Island and coastal British Columbia communities in Canada met over the weekend to debate whether to sue oil and gas companies to help offset the cost of cleaning up damage from floods and wildfire. David Screech, the mayor of View Royal B.C., notified his Twitter followers Sunday that the measure was defeated.

“The motion was soundly defeated just now at our conference. No lawsuits,” he wrote in response to questions from people concerned about what such a measure might mean for the industry. Screech’s office confirmed to The Daily Caller News Foundation that the measure was defeated.

Canadian taxpayers spent roughly $350-million on programs designed to fight B.C. wildfires in 2018. Fire suppression measures cost more than $568 million in 2017, according to media reports. B.C.’s auditor general said in a 2018 report that costs associated with man-made global warming across Canada could reach between $21 and $43 billion annually over 30 years.

One Canadian official who previously supported such measures is now reversing course. “Since we passed the original motion, I have had some second thoughts,” Victoria Mayor Lisa Helps said in an April 4 interview on CBC. “I think there might be more prudent and more timely approaches.” She cited reports suggesting Canada is experiencing a higher rate of global warming than many other countries.

Helps added: “Time is running out and fighting lawsuits is probably not the best way to spend our time, when we’ve got a planet to save.” Her newfound opposition to climate lawsuits stands in stark contrast to many of her American counterparts who are seeking climate lawsuits of their own.

New York City officials sued ExxonMobil and others in January 2018 for damages wrought by natural disasters.

U.S. District Judge John Keenan ultimately dismissed the lawsuit in July 2018, arguing that litigating such an action “for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S government.”

It’s the third such lawsuit brought against oil companies Exxon, Chevron, BP, Royal Dutch Shell and ConocoPhillips. A U.S. District Court judge in Northern California struck down identical lawsuits in 2018 brought by the cities of San Francisco and Oakland. Opponents of the litigation frequently criticize the trial attorneys behind the litigation, claiming that the lawsuits are nothing more than a get-rich scheme.

Hagens Berman, for instance, stood to earn billions of dollars in contingency fees depending on the total winnings, from a favorable judgment against oil companies. San Francisco, New York City and Oakland claimed billions of dollars worth of damage from global warming induced by fossil fuels.

Forbes Contributor Corbin Barthhold: In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution

To illuminate a modest living room for three hours a night for two months, you would need about a million lumen-hours of light. Now consider three inflation-adjusted numbers. One: in 1800 a subject of George III could get that much light for around £9,500. Two: in 1900 a subject of Queen Victoria could get it for around £230. Three: by 2000 it cost a subject of Elizabeth II less than £3.

What happened?

For one thing, Standard Oil happened. John D. Rockefeller was a fanatic. He kiln-dried barrel wood to save the expense of shipping trace amounts of water. He tested whether a drum needed 40 drops of sealant, or whether 39 would do. He relentlessly cut the cost of refining lamp oil. “Unlike the spermaceti candles of decades prior, sometimes wrapped in tissue paper fit for jewelry,” writes Bhu Srinivasan, “cheap tin cans filled with kerosene now allowed the common man to light his home.” These “cheap tin cans” fired the lamps of Britain.

Of course, no one has gained more from American oil than Americans themselves. Oil-powered factories spurred immense economic growth and attracted millions of immigrants. Oil-fueled cars brought a new autonomy to rich and poor alike. Abundant supplies of oil for ships and planes provided a momentous edge in World War II. “More than any other country,” Alan Greenspan and Adrian Wooldridge observe, “America was built on cheap oil.”

Facts like these are scarce in the legal complaints that cities such as New York and San Francisco have recently filed against major oil firms such as Standard Oil successors Chevron and ExxonMobil. In the cities’ telling, these companies are no more than “bad actors” that have “systematically poisoned the Earth.” The bearers of light are merchants of darkness.

The cities seek billions of dollars for sea walls and assorted abatement programs. Their theory is that the companies created a public nuisance—climate change—by selling fossil fuels.

Eight years ago, in AEP v. Connecticut, the Supreme Court ruled that federal regulators’ statutory authority over greenhouse-gas emissions displaces any legal claim attacking such emissions as a federal common-law nuisance. This makes sense. The United States is still a republic, not an oligarchy of lawyers. It is for the popular branches of the federal government to set national policy on issues of national scope.

The cities are trying to avoid AEP by suing producers (rather than emitters) under state (rather than federal) law for global (not just domestic) emissions. But these distinctions change nothing. Suing a producer for someone else’s emissions is no different in effect than suing the emitter itself; state nuisance law is no better than federal for quashing democracy; and neither cities nor courts are authorized to dictate global affairs.

Federal district judges have followed this logic in dismissing New York’s and San Francisco’s lawsuits. Washington Legal Foundation filed an amicus curiae brief in New York’s appeal, and it plans to file one in San Francisco’s.

The problems with the cities’ suits go well beyond the ones the courts have addressed. The Due Process Clause and the Commerce Clause likely bar or greatly curtail the cities’ claims. And the cities cannot establish proximate causation. It would be nearly impossible to disaggregate the oil firms’ actions from other potential causes of changing temperatures in, or sea levels around, a given urban area.

But above all, the cities simply cannot establish a public nuisance. To do so they would have to show that burning fossil fuels has done more harm than good. That is an irredeemably complex assignment.

Assume the cities would have to prove only the net benefit of dropping fossil fuels today. (New York and San Francisco coyly disavow this outcome, although they both call the oil firms’ products an “existential threat.”) Unless we rely heavily on nuclear power—something else activists want to eliminate—it is by no means clear whether we are at present capable of replacing oil and gas with other resources. The cost of renewable energy is dropping, but we probably need better batteries before we can turn entirely to the wind and the sun.

In any event, a centrally planned conversion to renewables would, even under the most sanguine assumptions, be a multi-decade, many trillion-dollar endeavor. And it should hardly need saying that the rosiest assessments are rarely the realistic ones. Those inclined to optimism about a top-down environmental revolution might meditate for a moment on the state of the California high-speed rail project.

A few people would happily just let the lights go out. Lurid modernity is wicked; bring on the blackout. But this is more religious conviction than legal argument. Inflicting mass economic harm today in the hope of averting an unknown amount of environmental harm tomorrow is a leap of faith. Leaps of faith are not proven by a preponderance of the evidence.

It’s not that the cities are necessarily wrong; it’s that they can’t know what they claim to know. Climate change is a serious problem. Even vigorous measures—carbon taxes, new nuclear plants, massive funding for green research—might not prevent calamity. But equally, panic measures—such as a fossil-fuel shutdown—could create more poverty and misery than they forestall. How to proceed in perilous and uncertain circumstances is a question not of law but of politics.

The harnessing of oil is one episode in our great acceleration into the Anthropocene. This ascendance could continue indefinitely. Or it could stabilize. Or everything could end in tears. We all crave to understand where we’re heading. We all want a glimpse of destiny. But every attempt to see the future is occluded by chance, by chaos, by the grand combinatorial explosion.

We can only do our best. Long is the way, and hard, that out of Hell leads up to Light.

Former Virginia Delegate Jackson Miller: Keep energy policy politics out of the courts

As a former member of the Virginia House of Delegates and the Manassas City Council, I believe that elected officials should make our laws while the court system should work to uphold them. Unfortunately, there has been a movement to use the court system as a political tool in an attempt to hold individual energy and manufacturing companies responsible for the impacts of climate change. Virginia should not replicate this misguided effort, as it does nothing to protect the environment while potentially causing the loss of good paying jobs. 

Over the past year, activists have filed lawsuits against companies in six states, including neighboring Maryland. They have done this because they believe that the energy and manufacturing sectors should be held accountable for contributing to climate change. 

Fortunately, these lawsuits have been largely dismissed for a variety of reasons, including that individual companies cannot be held responsible for this global phenomenon. This is certainly a good sign, but it is a practice that should be avoided here in Virginia because it is a waste of public resources and a lawsuit of this kind would do nothing to protect the environment. 

Our elected officials are tasked with ensuring that there are policies in place that keep the environment clean. The court system should not be used to try to create environmental policy, which is what these lawsuits are attempting. Yet unelected activists are doing just that. Filing frivolous lawsuits in an attempt to address global warming. 

Read here.

Florida South Sun Sentinel op-ed by NAM President and CEO Jay Timmons and AIF President Tom Feeney: Florida’s elected officials, businesses must work together to confront climate change

Florida is a state humming with manufacturers, health care providers, financial firms, and entrepreneurs. Our economic climate has never been brighter.

That is why Associated Industries of Florida engages state legislators, the governor’s office and executive branch agencies, and the state’s courts in support of policies that enable business to thrive.

We’re in our 100th year of supporting the success of Florida’s businesses and we’re busier than ever. When Florida’s businesses succeed, Florida’s people succeed. It’s just that simple.

Governors trying to attract new businesses present their states as alternatives to other jurisdictions that entangle businesses in paperwork, expose them to frivolous lawsuits, or impose high taxes. At the same time, there is more to being business-friendly than reasonable taxes and fair regulations. Reliable infrastructure, an educated workforce and energy sources are also critical.

Likewise, in a state that relies on tourism and recreation, our waterways and natural habitats must be protected. Florida’s citizens have a right to clean air and water. Our business community is committed to ensuring they do, which is why in 2017 AIF opposed amending the state Constitution to make it easier for citizens to sue companies over environmental issues. We thought the proposal would not advance environmental protection but instead create an adversarial, litigious environment. Fortunately, the proposal failed.

Read more.

President and CEO of the Florida State Hispanic Chamber of Commerce Julio Fuentes: Florida cities should embrace cooperation on climate change – not go to court

A new year and a new governor provide a hopeful backdrop for fresh approaches for sustaining Florida’s economic growth and creating opportunities for its people but a small pack of trial lawyers would rather pit Florida communities against energy companies over climate change. They think we can sue our way around this challenge but litigation would only mire our state in counter-productive confrontations with employers when cooperation on finding solutions is needed.

In his inaugural address Gov. Ron DeSantis called on all stakeholders to join together in promoting “a virtuous cycle whereby low taxes, a reasonable regulatory climate, a sensible legal system and a healthy environment attract jobs, business and investment.” That is the right tone. It encapsulates the common-sense, balanced approach for governing that Florida’s Hispanic businesses favor.

From tourism to technology to manufacturing, the 604,000 Hispanic-owned businesses contribute more than $90 billion to Florida’s economy each year. Many of these entrepreneurs faced unique challenges in accessing capital and grapple each day with the same laws and regulations all businesses face. This is part of doing business. All we ask for are public policies that allow us to prosper while being responsive to the public interest for safety, justice, and environmental protection.

Read here.

James Madison Institute President and CEO Dr. Robert McClure: Cooperation, not lawsuits, right way forward for Florida on climate

Late last year, a group of crab fishermen on the West Coast filed what is simply the latest in a series of lawsuits orchestrated by trial attorneys that target fossil fuel companies. The Pacific Coast Federation of Fishermen’s Association believes thirty energy manufacturers should be held responsible for delayed crabbing seasons and climate-related economic losses. Now, instead of Dungeness crabs, they — and the trial attorneys — hope to net a major payday in court.

Such lawsuits aren’t without precedent, of course. Over the past two years, local officials in states nationwide have filed so-called “public nuisance” lawsuits against fossil fuel companies, arguing they should be held financially responsible for climate-change impacts such as sea level rise. Why does this matter to Florida? In light of the state’s many coastal communities, some of the state’s officials might be tempted to file such lawsuits.

To date, these lawsuits have mostly fallen on deaf ears, with Judge William Alsup of the U.S. District Court for the Northern District of California, in June dismissing climate lawsuits filed by San Francisco and Oakland. Alsup reasoned correctly that the courtroom is a poor venue for solving a problem as vast as climate change. In July, U.S. District for the Southern District of New York Judge John Keenan employed the same rationale in dismissing a public nuisance climate lawsuit lawsuit filed by New York City targeting energy manufacturers.

The reality is that, having experienced a string of losses, trial attorneys are now shopping around for new plaintiffs to push their flawed legal theory. Even if that means finding potential plaintiffs on crab boats in San Francisco Bay. Or even if it means convincing officials in Florida to become the next to play the public nuisance sweepstakes.

Read more.