Climate change lawsuits are ineffective political stunts

Environmental activists are once again greeting a Republican administration’s resistance to setting carbon dioxide emission limits with lawsuits. In January, Mayor DeBlasio in New York City followed seven California cities that filed lawsuits over climate change last summer. 

These lawsuits, though, miss the point and their target. They are not suing the Trump administration. They seek to circumvent the Trump administration by threatening massive liability against American businesses if they do not reduce their individual emissions. 

{mosads}Progressives should not reflexively cheer these lawsuits. For one thing, people on both sides of the aisle agree that these lawsuits have no foundation in the law and will not succeed. They are solely political stunts.

In the early 2000s, environmental lawyers filed four similar lawsuits against U.S. companies when they were frustrated that President Bush was not doing enough to regulate carbon emissions. The lawsuits argued then — and now — that a handful of American companies, all associated with energy use and products, are liable for global climate change. 

While the various lawsuits invoke several novel legal theories, they have one thing in common: They ostensibly ask judges — not Congress or administrative agencies — to decide how much carbon dioxide, if any, a company or its products can lawfully emit. 

That’s a question no judge is qualified to answer. When George W. Bush was president, Mississippi property owners sued the energy companies for money related to their property damage from Hurricane Katrina. They argued that the companies’ products caused climate change, which made Katrina more intense and caused their damage. 

Not surprisingly, federal judges dismissed these lawsuits as political, not judicial questions. As one judge put it, companies cannot be subject to liability “for doing nothing more than lawfully engaging in their respective spheres of commerce.” 

Indeed, progressive scholars, including Harvard law professor Laurence Tribe, saw through these lawsuits as fool’s gold.

Much of this came to the fore when a U.S. Court of Appeals allowed one of the cases, American Electric Power Co. v. Connecticut, to go forward. In this case, several state attorneys general and some land trusts sued the six major Midwest power companies seeking a court order for a 3-percent reduction in carbon dioxide emissions per year over a 10-year period. 

The Obama administration urged the Supreme Court to review and dismiss the suit, arguing that regulation, not litigation, is the way to regulate carbon emissions. Professor Tribe and other progressives, including myself, filed amicus briefs explaining why this was so.

Moreover, the impeccably liberal Justice Ruth Bader Ginsburg wrote the opinion for a unanimous Supreme Court in dismissing the case. She explained that Congress and EPA, not courts, are the appropriate branches of government to regulate carbon dioxide emissions. 

These other bodies, she wrote, are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case decisions.” They can hold hearings and balance the many interests involved in setting national energy policy.  In oral argument, she warned against turning a judge into a “super EPA.” 

What she and the other progressive legal scholars understood is that these lawsuits are not about specific legal theories, including public nuisance, negligence or trespass. They strike at the heart of our way of life and how we set American energy policy. 

Environmental concerns with fossil fuel production are important, but so too are affordability and energy independence. Congress and the agencies can weigh all of these factors; courts cannot. Americans must be able to heat their homes, turn on their lights, fuel their cars and engage in other staples of modern life. 

As Nathan Richardson, an environmentalist who wrote for the Progressive Policy Institute at the time, this is “the right result regardless of our views on climate policy.” 

Given this history, it was surprising to see these new climate change lawsuits against American energy producers.  Rather than heed the advice of the Supreme Court and progressive thought leaders from the last go-round, green activists doubled down. 

Well-known environmental lawyer Dan Riesel, who supports these lawsuits, acknowledged that New York City’s complaint is “written more as a political statement.” He said the city “is saying ‘We have to take private action because the party that should be regulating the federal environment is doing jack.’”

It is clear that such politically motivated lawsuits do not work and would probably trigger a fierce political backlash if they did. They are showy, expensive distractions from the real work of balancing economic and environmental goods.

Worse, they can undermine American governance. As former Clinton Labor Secretary Robert Reich explained in the 1990s, attempts to bypass elected representatives in order to “enact” regulation through litigation are inherently anti-democratic. 

There is nothing progressive about purposely misusing the legal system. A progressive legal philosophy should defend legal safeguards for all actors in society, and that remains true regardless of one’s position on any given political issue. 

Phil Goldberg is the director of the Progressive Policy Institute’s Center for Civil Justice and managing partner of the Washington, D.C. Office of Shook Hardy & Bacon.