The nonsensical, hypocritical lawsuits against energy producers

Yet another state attorney general has filed a lawsuit against major oil and gas companies, seeking recompenses from these companies for damages allegedly caused by weather-related events. This month, it’s New Jersey. There are now more than two dozen such lawsuits making their way through state and federal courts around the country. Meanwhile, a similar lawsuit from New York City was heard in federal court and dismissed last year. 

At this point, these lawsuits appear to be nothing more than harassment designed to shine political fame and fortune on the politicians and their trial attorneys who instigate them. Such tactics need to end. Climate policy should be formulated by America’s elected officials, not by judges.

The local and state governments allege that energy companies concealed information about the risks that burning fossil fuels might pose to the earth’s climate. They claim the companies should compensate the local governments for damage caused by weather-related events such as floods, wildfires, storms and the loss of wetlands, and pay punitive damages for producing and selling petroleum and natural gas products.

The energy companies in question do not appear to be engaged in illegal activity in this regard. They did not conceal information about climate change from consumers because there is no conclusive evidence that burning fossil fuels from products made by the companies named in these suits — or any other companies — caused Superstorm Sandy to destroy New Jersey’s wetlands, instigated floods in Hawaii, or ignited wildfires in California. These lawsuits are based on political calculations, not facts and evidence. 

New Jersey and Vermont are some of the latest states in what has become a trend of opportunism by jurisdictions controlled by one political party. So far, lawsuits from places such as Rhode Island, Delaware, Boulder, Colo., and Baltimore have been stymied in jurisdictional fights over whether the cases should be heard in federal or state courts. Honolulu’s lawsuit could be the first to move into the discovery and trial phase after a First Circuit judge rejected the last request by industry lawyers to dismiss the case.

Now Chevron, which is named in some of the lawsuits, is taking a different approach in one final request for dismissal in the Honolulu case. Chevron argues that it could not have engaged in the so-called “deception” with which Honolulu has charged it because information about the potential risks that burning fossil fuels pose to the environment was widely available and discussed publicly for many decades. The company’s legal brief cites a slew of pop-culture references to fossil fuels and climate issues from the early 1990s, including the animated shows “Captain Planet” and “Teenage Mutant Ninja Turtles,” as well as popular sitcoms such as “Cheers” and “Frasier.”

An even more powerful argument that these lawsuits are frivolous comes from the federal, state and local governments themselves. Not only were the so-called risks posed to the earth’s climate from fossil fuels well known by the public but, for years, policymakers at every level of government permitted and encouraged consumers to purchase and use the products these companies provide. As recently as last week, the Biden administration encouraged energy companies to produce more oil and gas to bring down gasoline prices for American consumers.   

Chevron, ExxonMobil and ConocoPhillips cannot be more liable for weather-related damage under the current theory of climate change than Chinese coal factories or Middle Eastern national oil companies. All Americans rely on these businesses for energy and petrochemical products and as these lawsuits progress, they serve as a vehicle to pass on the costs to the consumer. 

Climate policy should be debated in the legislature, where elected officials can discuss and implement the will of their constituents. It should not be set through the judicial system where citizens have no say. It is time for the voters to tell their governments: no more.

Ellen R. Wald is a senior fellow at the Atlantic Council’s Global Energy Center, and president of Transversal Consulting, a global energy and geopolitics consultancy. She is the author of “Saudi, Inc.,” a history of Aramco and how the Saudi royal family controls this multitrillion-dollar enterprise. Follow her on Twitter @EnergzdEconomy.