by Jennifer Hijazi

Baltimore’s climate liability suit against oil companies belongs in state court, an appellate panel ruled Thursday, despite reviewing a fuller suite of industry arguments. The decision comes after the Supreme Court last year granted a petition from BP Plc, Exxon Mobil Corp., and other companies asking that appellate courts re-examine the cases based on a broader array of industry claims…The decision “misses the real issue here,” Manufacturers’ Accountability Project special counsel Phil Goldberg said in a statement. “Baltimore’s case, which the court acknowledges is novel, may be creatively packaged under state law, but the nature of climate change, this litigation and the remedies they seek are all inherently beyond the scope of any state,” he said.

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For decades, Congress has been unable to pass effective climate legislation. Presidential administrations have tried to use the regulatory process to shape climate policy with limited results. Out of frustration with these legislative and regulatory shortcomings and an overzealous belief that they know best, some climate activists have tried to use the judicial system to impose their energy and climate policies on the American people—even if their ideas don’t make sense.

The climate activists are doing this by filing lawsuits against energy companies to try and make them pay for local climate change impacts.  These lawsuits want to use state laws to obtain compensation for damages related to sea level rise and extreme weather such as more intense hurricanes. It is faulty logic to suggest these companies “caused” climate change and should have to fix it. The effort to use state law is significant because federal courts have already said that there is no legal or factual foundation for these lawsuits.

One of the most prominent current lawsuits is from Baltimore. On January 25, the Court of Appeals for the Fourth Circuit will begin hearings on the venue and applicable law governing this, and by extension, many other such lawsuits.  Although technical legalities could determine the outcome of this hearing, the lawsuit raises issues that should not be ignored. 

First, climate change is a global phenomenon and we all, through our consumption, share responsibility for its creation and resolution. U.S. energy companies did what consumers and successive U.S. governments wanted them to do. They provided reliable and affordable energy to improve the lives of hundreds of millions of Americans over multiple generations. The lawsuits reveal a lack of concern for the immediate affordability, reliability, and security of America’s energy supply.

Second, the lawsuits are not about climate justice and will not do anything to solve climate change; they are about money—just ask the municipalities and their lawyers. For states and municipalities, potential revenue windfalls are a major incentive for participation. For trial attorneys, the Manufacturers’ Accountability Project has pointed out that attorneys working for the plaintiffs could get paid up to 25 percent of the potential damages; in other words, the plaintiffs’ lawyers stand to make millions or billions of dollars. 

For climate activists, the lawsuits are a backdoor way to cripple the U.S. energy industry and make energy too expensive for us to buy, thereby theoretically accelerating the transition to a lower carbon economy.  However, crippling the U.S. energy industry and putting the cost of energy out of reach of many Americans will create massive and dangerous energy shortages, shift energy market power back to OPEC and a very hostile Russia, and hurt us all.  If anyone doubts this, they should look at the largely self-inflicted and ongoing European energy disaster.

Third, making a few energy companies pay billions of dollars is completely arbitrary and discriminatory.  Climate change has many causes from farming, to energy use, to personal and community land use. Tens of thousands of companies from across multiple industries, in scores of countries, and over generations produced the carbon products that are now warming the globe. Unremarked upon by the plaintiffs is that the largest cumulative greenhouse gas (GHG) producers are not the corporations targeted in these lawsuits but state-owned or quasi state-owned energy companies. Why not sue them? 

Shall we sue meat producers or rice farmers?  How about companies supplying hospitals with anesthetic gases?  All of these companies make highly GHG emitting products.  Why not just sue every person who consumes any product that emitted GHG during its creations or consumption?

The truth is that activists and their local backers do not want you and me—motorists, meat or rice eaters, or people who received anesthesia while in hospital— to be directly punished for our energy use.  Doing so would create a political backlash ending activist efforts to stop fossil fuel consumption. It also would expose the logical flaws in their reasoning.  Hence, the next best strategy is to wage a legal war on the energy industry in the hopes of so damaging its business prospects that they can no longer operate.

Climate change is not the fault, either today or in the past, of the energy industry. If we are going to solve the climate problem, it will come through innovation, new technologies, and government-private sector collaboration, including with the energy industry. Local and state officials should not engage in meritless lawsuits that exacerbate our problems, and taxpayers certainly should not tolerate this activity.

Jonathan Chanis manages New Tide Asset Management, LLC, a Maryland-based company investing in commodities and listed equity. He formerly taught at Columbia University and worked at several financial firms, including Citigroup and Goldman Sachs. 

Read the full op-ed here.

Attorneys for Baltimore and fossil fuel interests are scheduled to face off tomorrow in a closely watched climate litigation case that could signal which courts may ultimately hear allegations that the oil and gas industry misled the public about the dangers of global warming.

The oral arguments before a Virginia appeals court will be the first since a Supreme Court ruling in May found that appellate judges could consider a broader range of factors when deciding whether liability lawsuits should be heard in state or federal court (Greenwire, May 24, 2021).

The procedural ruling in Mayor and City Council of Baltimore v. BP PLC, was seen as a win for the companies, who argue that energy production is a federal issue and see the federal courts as a friendlier venue.

Baltimore, which originally filed its climate liability lawsuit against BP, Exxon Mobil Corp. and 24 other oil companies in state court in 2018, will argue that the cases — which seek damages for the costs of dealing with climate change effects such as sea-level rise and flooding — should be heard at the state level.

The outcome could influence other cases; nine similar climate litigation cases were sent back to the appellate level after the Supreme Court ruling. The 9th U.S. Circuit Court of Appeals in Hawaii is scheduled to hold arguments Feb. 18 in a similar case (Climatewire, Jan. 13).

“Judges look at other judges’ work,” said Georgetown Law professor William Buzbee. “Each time a court begins to explore and clarify what is tenable and what isn’t, it shifts the playing field, it narrows what the cases are about and begins to both illuminate arguments and introduce others.”

Attorneys watching the case suggested the companies are looking at the case as a way to convince the Supreme Court to wade into the merits of climate litigation.

“This is an important case,” said Bob Percival, director of the University of Maryland’s environmental law program. “I don’t think the companies realistically think they’re going to win … but what they’re hoping is to set up a vehicle to go to the Supreme Court and say ‘Now, you can be really aggressive and preempt all climate litigation.’”

Percival noted the high court last May made it clear that it was not accepting the industry’s invitation to decide the case on the merits.

“They want to get an activist Supreme Court to wipe out the biggest headache facing these oil companies, they desperately want to avoid a trial that would expose to the public what they knew about climate change,” he said.

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, an initiative of the National Association of Manufacturers that opposes the climate liability litigation, said the companies will argue that addressing climate change requires a coordinated federal approach.

“These are federal policy issues, and they need to be heard at the federal level and decided at the federal level,” Goldberg said. “It should not be decided by individual state judges on a state-by-state basis.”

In the association’s friend of the court brief filed in August, it argued that to resolve the various state and municipal climate change claims, state courts would need to “create new rules governing the international production, sale, promotion, and use of fossil fuels.”

That, the association said, would “undermine national energy objectives, including federal efforts on the climate, energy independence, the stability of the electric grid, and energy affordability.”

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The D.C. Council this month passed legislation to allow the District of Columbia’s attorney general to sue individuals and businesses for political reasons without accountability. It did so under the “emergency” powers of the district, avoiding the checks and balances of the regular legislative process. This misuse of government power is unprecedented, undemocratic, and unnerving.

The legislation in question exempts the district from “anti-SLAPP” laws, which protect people from being sued in an effort to intimidate them from engaging in public policy debates. SLAPP stands for “strategic lawsuits against public participation,” and anti-SLAPP laws are widely supported by the American Civil Liberties Union, media organizations, and others as core safeguards protecting free speech.

So what is this all about? Climate change politics.

In a letter to the council, the attorney general said he wants to be exempt from anti-SLAPP accountability in order to maintain his lawsuit against energy manufacturers over their involvement in the climate change debate. Whatever one’s political persuasion or view on climate and energy, this litigation and the anti-SLAPP exemption are horrible ideas.

This litigation is not about whether climate change is a serious problem. It is. The only path forward is to innovate new ways for the world to source and use energy so it can do so sustainably.

However, developing such climate policies has proven difficult; they often present complex problems rife with regional and political differences. After all, they affect basic aspects of all of our lives: how we heat and cool our homes, fuel our cars, power our workplaces, and so much more. It is frustrating that partisan politics has paralyzed Washington over the past few years on lots of topics, let alone on critical, complicated issues such as climate change.

Scapegoating energy companies for Congress’s dysfunction, though, is no way to make climate policy, even if it makes for good politics in some circles. The Supreme Court already said so in response to a previous attempt at this litigation. In 2011, in a unanimous opinion written by Justice Ruth Bader Ginsburg, the court said balancing the competing interests involved in energy policy, including affordability, energy independence, and climate, is something only Congress can do.

Read the full op-ed here.

There is an old Albert Einstein saying that insanity is doing the same thing over and over again and expecting different results. Welcome to New York City’s never-ending attempt to sue and blame corporations for climate change. With new leadership in Gracie Mansion, it’s time to break this litigation insanity.

Earlier this year, outgoing Mayor de Blasio grabbed headlines when he announced the city was suing energy companies over climate change. This case is the city’s third climate lawsuit in the past 20 years — all based on variations of the fact that energy use emits carbon dioxide.

We all know climate change is a serious problem. It is a byproduct of modern society. Electrification, refrigerating food and cooling and heating homes were some of the greatest human health developments of the last century.

How we achieved those advancements in the first place is not how we are maintain them in the future. The only way to tackle climate change is to innovate new technologies that will allow us to source and use energy sustainably, among many other things.

The mayor’s lawsuits will do nothing to aid this transition or solve climate change. The previous lawsuits failed for good reason. The first was filed in 2004 by then-New York City Mayor Bloomberg. He joined several states in suing the nation’s major electric companies to try to get a court order against their operations.

The Supreme Court in 2011 unanimously rejected this case. Justice Ruth Bader Ginsburg, writing for the court, said judges should not get involved in setting national climate policy. Climate change is an important issue, and Congress and the Environmental Protection Agency are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case” decisions.

The city’s response? File more climate lawsuits — and get others to do the same. In 2012, the architects behind the city’s litigation put out a report saying they still believed “the courts offer the best current hope” for imposing their political agenda, which includes a carbon penalty. At a 2016 meeting in New York City, they said litigation also gives them a platform for creating a “scandal.”

New York then became the center of this litigation campaign. The state filed a lawsuit intended to drive the vilification of energy manufacturers. De Blasio filed the city’s second climate lawsuit, this time targeting energy manufacturers and saying they should have to pay billions of dollars to the city.

Read the full op-ed here.

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.

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.

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.

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.