Blame-Game Litigation Won’t Solve Climate Change

April 9, 2021, 8:00 AM

In recent years, climate change lawsuits filed by municipalities and states against energy producers have swept the country. Although the plaintiffs portray these suits as seeking “truth, justice, and accountability,” they threaten to undermine and distract from the constructive policies that provide real solutions to climate change.

These lawsuits seek billions of dollars from energy companies for alleged climate misrepresentations and harms like rising sea levels and wildfires.

One such lawsuit was filed last summer by Minnesota Attorney General Keith Ellison (D), who recently wrote an Insight for Bloomberg Law calling on the Biden administration to help litigate who is to blame for climate change.

Looking in the rear-view mirror for blame-worthy conduct isn’t the right approach for a complex issue such as climate change. Was it wrong to create an affordable transportation system that allowed Americans the freedom of personal automobiles?

Should we condemn the rise of natural gas for generating electricity that has helped reduce emissions by shifting from coal-fired power? Do we now regret the American ingenuity that freed us from reliance on foreign oil?

Climate Suits Are Modeled After Tobacco Litigation

The climate suits are modeled after the tobacco litigation of the 1990s. Lawsuits can be a powerful tool for social change, as we found when we successfully represented the state of Colorado in suing tobacco companies.

The state attorneys general compelled tobacco companies to pay over $200 billion in damages and change marketing practices. We obtained decades of internal documents from tobacco companies revealing that executives knew about nicotine addiction and cancer causation long before they publicly acknowledged these dangers.

Yet, tobacco-style litigation is not the right tool for addressing climate change. The essential difference between tobacco litigation and climate litigation is that advertising was a central cause of the public’s smoking habits. Pervasive marketing resulted in people using tobacco.

In today’s world, without cigarette advertising, tobacco usage has declined—confirming the direct correlation. Because of that relationship, the truthfulness of tobacco advertising was an important element of legal policy.

There is no similar correlation between fossil fuel marketing practices and climate change. People fill up their tanks with gasoline because they want to commute to work or take a family vacation.

They decide whether to purchase a car powered by gasoline or by electricity based on price, performance, and environmental attitudes. Litigation seeking internally inconsistent statements by oil companies misses the point of why people use fossil fuels.

Legislation Is Contentious, But Preferable

The U.S. has not adopted comprehensive climate change legislation because the issue is contentious and impacts so many industries, livelihoods, and aspects of daily life. Political proposals bear hefty price tags.

Stringent environmental regulation is pitted against economic prosperity and energy independence. Considering these intractable difficulties, skipping the political process, and going to court may seem inviting.

But as frustrating as the democratic process may be, Congress is much better suited for addressing climate change. Under the constitutional separation of powers, it is the legislative and executive branches that set policies, while the courts interpret and enforce them.

Courts and juries are not equipped to handle complex scientific questions requiring sophisticated and multifaceted remedies. Rather, federal agencies do have such capabilities.Similarly, Congress is equipped to balance competing interests, such as consumer costs and the economic impact for industries and jobs.

It is not the role of courts to set wide-ranging policies in the absence of legislative consensus.The active climate cases, if decided in favor of the plaintiffs, would result in chaos, not good policy. Let’s take the example of a city suing to cover the cost of building a sea wall to protect against rising ocean levels.

A local jury verdict might force the defendant energy companies to pay the city a multibillion-dollar settlement, but, as we learned from the national tobacco settlement, there is no assurance the money will be spent on sea wall construction.

The local government could spend it on a new municipal theater or sports arena, with no climate benefits. The city’s contingent-fee attorneys would take a cut, in some cases up to 25% of any total judgment or settlement.

Further, there would be no equitable distribution of funding. One plaintiff city might get millions or billions of dollars, while the next community could get nothing. That’s not accountability.

There also won’t be any justice for working-class men and women. The damages would be paid by the defendant companies, but ordinary people would suffer the collateral damage.

Consumers would pay more for gasoline. Workers in the fossil-fuel industry would lose their jobs. And 401(k)s with investments in oil and coal would decline.

While oil companies might suffer debilitating jury awards, this would do little to spur energy innovation.

Comprehensive Settlement Is Impossible

A comprehensive litigation settlement addressing the many sources of greenhouse gas emissions is impossible. No negotiating table is large enough to seat all the industries emitting carbon dioxide from energy producers to airlines, utilities, and livestock ranches.

Even the cities themselves are emitters through transportation systems and utilities. The only ones absent from these hypothetical negotiations would be voters and legislators—the ones who should be making decisions.

Finally, the truth is that lawsuits do not inspire innovation. Lawsuits are about casting blame—and when it comes to climate change, there is no one entity, industry, or person to blame. It’s not an appropriate issue for the courts and should be handled by elected leaders and the innovative spirit of the American free market.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Gale A. Norton is president of Norton Regulatory Strategies. She served as Colorado’s attorney general from 1991-1999 and as Secretary of the Interior in the George W. Bush administration from 2001-2006.

Martha P. Whitmore is a partner at Hockersmith & Whitmore LLC in Ouray, Colo. She was Colorado’s chief deputy attorney general from 1995-1998.

Both Norton and Whitmore actively participated in the 1990s attorney general tobacco litigation and settlement.

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