Bloomberg Law
Feb. 1, 2021, 9:00 AM

Nuisance Laws an Ineffective Way to Hold Big Oil Accountable for Climate Change

Ellen R. Wald
Ellen R. Wald
Transversal Consulting

In Colorado, California, Maryland and elsewhere, local officials, in conjunction with plaintiffs’ attorneys, are taking a new approach to suing mostly American oil and gas producers for alleged climate change impacts—attempting to use state nuisance laws to establish causes of action against these companies.

From a purely practical—not legal—perspective, these nuisance lawsuits are irrational, ineffective, and unreasonable. From a realistic perspective, these lawsuits are not useful to achieve environmentalist goals.

Fortunately, the U.S. Supreme Court has the opportunity to put an obstacle in their way. The court, which heard oral arguments on Jan. 19, will soon be deciding whether the oil industry should have another chance at arguing that BP Plc v. Mayor & City Council of Baltimore should move to federal court where judges are more likely to determine that federal law preempts these state statutes. This is important, because federal law says such pollution claims are interstate issues and are the purview of the Environmental Protection Agency and should not be left to state nuisance laws.

Carbon Emissions Are Produced Globally

The nuisance lawsuits are irrational, because the pollution at issue is of a truly global nature. Carbon emissions are produced globally, and carbon dioxide spreads throughout the world’s atmosphere. According to the United Nations’ most recent Emissions Gap Report, China emits more than twice as much greenhouse gas as the U.S. In fact, “China emits more than one-quarter of global GHG [greenhouse gas] emissions.”

Carbon emissions from China do not stay in China and do not cause climate change only in China. Likewise, Baltimore is impacted by global emissions and only slightly impacted by any specific emissions from its neighborhood. It is equally impacted by emissions from Africa and Europe and Asia and Maryland. Suing local companies for damages that may be caused by global carbon emissions is misguided.

In law, a nuisance is that which disturbs another, in the lawful and productive use of his property, through the unreasonable or unlawful use of one’s property. Since the oil business is lawful, the argument here would be that it is unreasonable. Even if that were the case—and it’s a hard argument to make because every single American citizen uses that produced oil—a local nuisance argument is the wrong tactic if the goal is environmental protection.

These lawsuits are also bound to be ineffective at achieving environmentalists’ goals. Even if the lawsuits somehow succeed in restricting the business operations of some energy producers, other overseas producers will still create carbon emissions with equally global impact. Moreover, the American market will still buy energy, from abroad if necessary.

American factories, power plants and consumers will still emit carbon within our own borders, even if the major American oil and gas companies have pledged to reduce their emissions in years to come. Fundamentally, climate change cannot be prevented by suing some oil and gas companies.

Nothing Local About These Lawsuits

Finally, the lawsuits are unreasonable, because if they are successful, they could only help to enrich foreign producers while harming the American marketplace. If producers that currently serve Americans are forced to pay damages for local complaints about global carbon emissions, foreign companies could prosper from higher oil prices and inroads into the U.S. market. Meanwhile, American consumers would pay more, and Americans could potentially lose jobs.

There is nothing local about these lawsuits. This is not akin to a nuisance claim when your neighbor emits something that disturbs you in your property. Colorado and Maryland are impacted by Sinopec (China), Rosneft (Russia) and KOC (Kuwait) just the same as they are impacted by the oil companies that the local governments chose to sue. Carbon emissions spread around the globe, and changing temperatures impact the planet as a whole. The emissions do not generally originate locally, and they do not generally harm locally.

Climate change is not an issue that can be addressed city by city. It must be done at a federal level with the reach of the federal government, both domestically and abroad. Yet, plaintiffs’ attorneys and localities have chosen to sue select oil companies under state laws. Neither the nuisance laws nor the state reach are sufficient to deal with the global nature of greenhouse gas emissions and climate change.

As the Manufacturers’ Accountability Project argues, “developing national energy policy is a legislative and regulatory matter and should not be driven by a number of state court judges across the country based only on a narrow set of allegations.” This argument should be instructive for any local officials considering this flawed legal approach. It is best for every party and for the environment to leave this as a national policy issue.

In fact, these lawsuits should raise quite a bit of skepticism. Since they can accomplish nothing for the environment, are they really about the environment? Or are they actually about politics and a payday?

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

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Ellen R. Wald is president of Transversal Consulting and a nonresident senior fellow at the Atlantic Council’s Global Energy Center. She is also the author of “Saudi, Inc.” a history of the Saudi oil industry.

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