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The Oregonian Letter: Innovate, don’t litigate

Events all around us make clear that we are at a crossroads on climate change. How we choose to address this crisis will define our generation.

Electrification — from refrigeration to heating homes to the information age — has fueled the greatest health and standard of living advancements in history. But how we did these things in the past is not how we are going to in the future.

The only way to fight climate change globally and locally is what Oregonians excel at: coming together and innovating. We need to invent ways to use and source energy sustainably.

Yet some prefer a less-celebrated American tradition: litigation (“Oregon should make polluters pay for a broken climate,” Aug. 4). They want to sue energy manufacturers for “causing” climate change. Oregon has wisely resisted this effort. Pointing fingers is easy, but we cannot litigate away climate change.

Read the full letter here.

Portland Press Herald Letter: Suing manufacturers won’t mitigate climate change

University of Maine Law School professor Anthony Moffa’s heart is in the right place in urging action on climate change (Maine Voices, July 27), but suing manufacturers won’t help and is counterproductive. What we need for this shared challenge is an all-in, inclusive approach.

Trying to blame climate change on energy companies started 20 years ago. In 2011, the Supreme Court threw out such a suit by Vermont, Connecticut and other states. As Justice Ruth Bader Ginsburg explained in the opinion, courts are not the place to set national energy policy.

Climate change is a byproduct of modern life. The challenge is figuring out how to provide us with energy we need to heat our homes, drive our cars and power our workplaces without impacting the climate. Innovation in sourcing and using energy is the only solution.

Litigation would undermine these efforts, tying the hands of national policymakers. Attorneys in this litigation have acknowledged their true goal is to use courts to impose a penalty on energy use regardless of the cost to families and businesses. That’s the last thing Maine needs.

Read the full letter here.

Newsweek Op-ed: Americans Need Solutions on Climate Change, Not Finger Pointing and Ineffective Lawsuits

National lawmakers, companies and environmental groups are now engaging in important discussions over how the United States, and ultimately the planet, can reach our climate goals. The most important task is figuring out how to develop the technologies we need to source and use energy much more efficiently so the world’s energy use will have a net zero impact on the climate. It is a mammoth undertaking requiring a collaborative “all in” approach.

Some people, though, are stuck in the past. Rather than join this solution-based effort, they are waging a 20-year old campaign to blame climate change on energy manufacturers. Scapegoating energy companies may make for good politics in some circles, but climate change is no more their fault than ours. We need energy to turn on our lights, fuel our cars, power our workplaces and produce goods. The challenge is figuring how to sustain modern life and the climate.

One of the problems with this litigation approach is that it will hinder the ability of our national leaders to lead on climate. As the architects of the litigation campaign have said, they are trying to go state-by-state to get local judges to circumvent Congress and “raise the price” of energy. Their ultimate goal is for judges to impose a back-door penalty on all of our energy use. In their words, “holding oil companies responsible is to hold oil consumers responsible.”

Read the full op-ed here.

Boston Herald Op-ed: Innovation, not litigation can protect Mass. from climate change

The fight against climate change is a critical challenge of our time. To be successful, we must work together to develop and enact meaningful solutions. Some elected officials, including in Massachusetts, who could really help this effort, have chosen a different path. Instead of fighting climate change, they are engaged in a campaign of casting blame and political partisanship.

Since 2017, Massachusetts and a couple dozen of local and state governments have teamed with plaintiffs’ lawyers and private foundations to sue energy manufacturers, seeking to blame them for the impacts of climate change. But, as most people understand, climate change is a global problem to which everyone—not just a handful of companies—contributes.

As proponents of this litigation have admitted, this litigation campaign will do nothing to address climate change. What it will do, though, is undermine solutions-oriented efforts. The manufacturing community is working hard to develop the innovative new technologies that can allow us to source and use energy much more efficiently so that we can significantly reduce GHG emissions.

This approach is working. The cost of wind and solar farms has fallen dramatically while output has soared. Cars, airplanes and factories have all become more efficient. This is just the beginning. Every major company— including traditional energy manufacturers — understands that climate change is a by-product of energy use, as well as other aspects of modern society, and is actively engaged in climate solutions.

Read the full op-ed here.

Duluth News Tribune Op-Ed: Innovation, not baseless litigation, the right path to climate solutions

Climate change is a byproduct of modern society. Energy production allows us all to turn on our lights, heat our homes, power our workplaces, and produce the goods we rely upon for our daily lives. Most major companies — including traditional energy manufacturers — understand these facts and are now actively driving climate solutions. Rather than join this effective and inclusive approach, some prefer to make this issue political, look backward, and point fingers. They advocate lawsuits against energy manufacturers for “causing” climate change. Unfortunately, Minnesota has decided to join this litigation campaign, filing a lawsuit in 2020 against several energy manufacturers and a national trade association (“Ellison files lawsuit against fossil fuel giants for ‘campaign of deception’ on climate change,” June 24). This litigation blame game is a counterproductive distraction. It is also expensive for every person, family, and business. If these lawsuits are successful, each person’s energy bills will go up by hundreds, if not thousands, of dollars each year. Many people cannot afford these costs, particularly when even the lawyers and politicians behind these lawsuits fully acknowledge the litigation will do nothing to solve climate change.

Read the full article here.

Colorado Sun Op-Ed: Boulder’s climate lawsuit would be costly for consumers

Climate change is a pressing challenge shared by every person, business and government around the world. How we choose to address this crisis — whether we unite behind a common purpose or let it become yet one more pawn in the politics of division — will define our generation and our success.

The common-purpose approach happens to be what America has always excelled at: innovation. If we are going to overcome climate change, we need our elected and businesses leaders to focus like a laser on developing the technologies we need to protect people and our planet. 

The good news is that this approach is already working. The cost of wind and solar has fallen over the past decade while output has soared. Cars, airplanes and factories have become more efficient. 

Manufacturers in America, which need energy to make products, have reduced the carbon footprint of the things they make by 21% over the past decade while contributing 18% more value to the American economy.

Unfortunately, the city of Boulder, along with Boulder County and San Miguel County, chose the other path, filing a lawsuit seeking to absolve themselves and blame others for this global problem. 

Read the full op-ed here.

Boulder Daily Camera: Appeal in Boulder climate change lawsuit in hands of 10th Circuit panel

In oral arguments presented by telephone due to the coronavirus pandemic, the next chapter in the city of Boulder and Boulder County’s lawsuit against several fossil fuel companies seeking compensation for the cost of combating the effects of climate change played out before the United States 10th Circuit Court of Appeals in Denver this week.

Kevin Hannon, a Denver-based attorney representing the Boulder governments, and the third plaintiff to the suit, San Miguel County, said arguments were presented in about 35 minutes Wednesday to a three-judge panel of the 10th Circuit. Under appeal by the corporate defendants in the case is the ruling in September by U.S. District Court Judge William J. Martinez, which sent the matter back to Boulder District Court, where it was originally filed in April 2018.

The defendants in the case, Exxon Mobil Corporation, Suncor Energy (U.S.A.) Inc., Suncor Energy Sales Inc., and Suncor Energy Inc., had previously successfully moved in June 2018 to have the venue switched from state court in Boulder to federal court; federal courts have proved more favorable ground for oil and gas companies in some similar cases elsewhere in the U.S. The Boulder/San Miguel case is the first climate change lawsuit seeking to hold the extraction industries accountable for the cost of coping with climate change from a landlocked state.

The Boulder climate change case was heard in just the second day of the justices’ handling their docket by telephone.

Arguments on behalf of the city and two counties were made by Rick Herz, senior litigation attorney for Washington, D.C.-based EarthRights International. Marco Simons, that organization’s general counsel, was listening in on the arguments, and said on Thursday that much of the debate was around whether the 10th Circuit could even properly hear arguments over venue, at this point. Simons maintained that litigants only have “a very limited ability to appeal, from orders sending a case back to state court.”

Simons said the companies also argued “It should be in federal court because, in their view, matters concerning climate change implicate lots of federal policies and concerns, and therefore they should be in federal court. And in our view, that’s just, first of all, not true. But second of all, that’s not enough for federal jurisdiction because of the implications for climate policy that happen at the state level every day, without any problem.

“State courts commonly hear all kinds of claims that may have national or even international implications that concern nationwide practices or global practices. And that just does not qualify them for federal” court. He cited, as one example, litigation concerning the opioid epidemic, which has ravaged many parts of the country, that has occurred in state courts.

In support of the defendants, Phil Goldberg, Special Counsel to the Manufacturer’s Accountability Project, said in a statement, “The most telling moment from (Wednesday’s) climate litigation hearing in the Tenth Circuit is when the lawyer for Boulder County acknowledged that this lawsuit was about going after the worldwide sales ‘across the entire enterprises’ of energy manufacturers.

“Trying to regulate worldwide sales of energy through tort liability is not the role of the courts or state law. Selling Coloradans the energy needed to power their homes, businesses and communities is not unlawful. There is no doubt that we need to mitigate global climate change, but scapegoating energy manufacturers and using state tort law for this shared global challenge is baseless and not productive.”

Goldberg said that if Boulder officials “really want to do something about climate change, rather than just try to score local political points, they should work with manufacturers on energy innovations. Innovation and collaboration, not litigation, is the only way to make a real difference for Colorado in the fight against global climate change.”

Hannon said it is not known when the appellate panel will rule on the arguments it heard Wednesday. Simons suggested a window as broad as between “two weeks to 12 months” could be possible.

The full article can be read here.

E&E News: Honolulu sues Big Oil for climate damages

Honolulu yesterday launched the latest legal battle against oil and gas companies over who should pay for climate change impacts like sea-level rise.

The city, which announced its intent to sue last year, submitted its challenge in the Oahu 1st Circuit Court after approval from the City Council (Climatewire, Nov. 6, 2019).

Josh Stanbro, Honolulu’s chief resilience officer, said during a press conference announcing the lawsuit that the city is following the footsteps of dozens of other municipalities challenging oil companies for “unjustly having to bear climate change and its impacts due to the information that’s been withheld over time by the fossil fuel corporations.”

He said the complaint echoes tobacco and opioid nuisance litigation, noting that fossil fuel companies knew for “decades and decades” that their products would cause “tremendous” local damage and that taxpayers would end up footing the bill. Stanbro noted that climate change may have cost Honolulu billions of dollars but that the exact figure would emerge during trial in the case.

“Instead of disclosing that information, [oil and gas companies] actually covered up the information,” he said. “They promoted science that wasn’t sound and in the process have sowed confusion with the public, with regulators and with local governments such as ourselves around what the true damages of these products were.”

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, said the lawsuit will cost taxpayers more by “scapegoating” the industry.

“People throughout Honolulu and the entire state of Hawaii need energy to power their homes and businesses, as well as the ability to bring tourists, goods and services to the islands,” he said. “The truth is that the best way to fight climate change is to engage with the manufacturing community on the major innovations.”

Maui County also announced plans last fall to fight the oil industry for compensation, but the county has yet to file its lawsuit.

The full article can be read here.

Legal Newsline: Baltimore gets favorable decision letting its climate change case transfer out of federal court

The U.S. Court of Appeals for the Fourth Circuit has refused to reverse a remand order sending the City of Baltimore’s climate lawsuit to Maryland state court, virtually ensuring ExxonMobil, Chevron and other oil companies will face trial seeking billions of dollars in damages in an unfavorable venue they were hoping to avoid.

A three-judge panel on the appeals court rejected the oil companies’ argument the case should be removed to federal court under a statute that prohibits state courts from hearing lawsuits relating to acts by federal officers or under their orders. The defendants cited contracts with federal agencies and offshore drilling leases they said showed they were operating under the orders of federal officials.

The appeals court disagreed, saying the contracts cited weren’t enough to give the court jurisdiction. Federal appeals courts have extremely limited jurisdiction to overrule remand decisions by district courts, the Fourth Circuit panel said. The district court rejected the defendants’ other arguments against remand, including that the lawsuit involves purely federal questions of energy policy, and the U.S. Supreme Court declined to intervene while the appeal to the Fourth Circuit was pending. 

Last June, U.S. District Judge Ellen Hollander ruled that the climate lawsuit should return to state court, rejecting the reasoning of federal courts in New York and San Francisco that previously ruled climate lawsuits don’t belong in court at all. Baltimore is represented by Sher Edling, a law firm working under a contingent-fee contract. 

Phil Goldberg, a lawyer for the Manufacturer’s Accountability Project, said climate change “is not a liability issue for state or federal court.”

“This effort to try to scapegoat others may score political points, but it is not productive,” he said in a prepared statement. “If Baltimore officials really want to do something about climate change, they should work with manufacturers on energy innovations for the City, not waste everyone’s time with this baseless litigation.”

Other courts to consider climate litigation have found it presents non-justiciable questions of policy. In a 2018 decision, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.” A federal judge dismissed New York City’s climate lawsuit also in 2018 and in December a state court judge in New York rejected that state’s “ill-conceived” lawsuit against ExxonMobil over allegations it misled investors about climate change.

The full article can be read here.

Bloomberg Environment: Baltimore Climate Case Against Big Oil Kept in State Court

Baltimore’s legal effort to hold fossil fuel producers liable for climate change can proceed in the state court where it was filed, a panel of judges ruled Friday in a blow to companies facing climate litigation across the country.

The U.S. Court of Appeals for the Fourth Circuit sided with Baltimore in the latest stage of its lawsuit against BP Plc, Exxon Mobil Corp., and other multinational energy companies—one of a dozen pending cases targeting the industry for its role in rising global temperatures.

Chevron Corp. has already vowed to challenge the decision.

Baltimore says oil and gas companies should cover the costs of raising local streets, enhancing stormwater infrastructure, and making other local investments to address damages linked to climate change. The city and the companies disagree on whether the case belongs in state or federal court.

The full article can be read here.