Over the past several years more than two dozen cities and states across the United States have taken to the courts in a misguided attempt to address climate change. While it’s vital that state and local officials work towards effective solutions on this growing challenge, these lawsuits are not the right course of action. They not only lack merit but are harmful to the development of future innovative energy technologies and usurp the Congressional authority to create and implement environmental policy.
A thorough examination of the facts demonstrates that these cases, which seek to hold energy producers financially liable for purported damages from the effects of climate change, lack any legal basis.
The allegations are baseless that the energy companies currently facing legal action deceived government officials and leaders on climate risks. Hundreds of thousands of scientific papers that studied the risk of climate change were published on the matter between 1980 and 2014 and no less than “246 Congressional hearings on climate change involving 1,595 congressional testimonies between 1976 and 2007 alone” were held according to one court filing. It’s hard to square that fact with the notion that the public was allegedly “deceived” about the risks of climate change.
Meanwhile public nuisance claims – allegations that fossil fuel production has contributed to climate change events that have supposedly harmed communities – have failed time and time again in court.
In addition, greenhouse gas emissions are global and the fact that every single person uses products made with fossil fuels makes these allegations impossible to prove. That’s why the U.S. Court of Appeals for the Second Circuit, in dismissing New York City’s lawsuit in 2021, noted the city “wishes to impose New York nuisance standards on emissions emanating simultaneously from all 50 states and the nations of the world.” It’s reasons like this why New Hampshire legislature recently voted to jettison a proposal to pursue similar climate lawsuits. Lawmakers there reasoned the lawsuits penalize energy producers in the U.S. but absolve major polluting countries like China.
The attorneys bringing these actions are operating under the specious assumption that their efforts will have a significant impact on the climate and are simultaneously hoping for jackpot justice. But the reality is that by suing these energy companies, they are undermining the very partners the country will need to work with to usher in a greener energy future.
Energy producers have led the way in the effort to advance clean energy technology, but such legal action disincentivizes that objective. Natural gas, for example, is among the leading contributors to lowering carbon emissions and my home state of Pennsylvania is the second-largest producer in the U.S. The EIA found the transition from coal to natural gas in the power sector led to a reduction of carbon emissions by 32 percent in America from 2005 to 2019.
Meanwhile, investments by energy producers in carbon capture and storage (CCS) hubs have made the U.S. a leader in this space. With 80 facilities expected to be operational by 2030, International Energy Agency data shows the U.S. could see CO2 capture capacity increase five-times to more than 100 metric tons of CO2 annually. Restricting the financial resources of some of America’s leading innovators – an intended goal of the litigation – is a damaging approach that will prevent future technological advances such as these.
Instead of counterproductive lawsuits, public officials should be focusing on Congressional efforts to create public-private partnerships with energy producers to curb climate change. The great strides the natural gas revolution has made in curbing emissions, for example, demonstrates how the intersection of government funding and private innovation offers a much more promising pathway to a green energy future.
As federal Judge for the Northern District of California William Alsup put it when he dismissed two climate lawsuits in 2018, “the problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” To put it another way, Congress is the only branch of government that can provide accurate direction when it comes to setting climate policy. Now that the U.S. could be facing the very real scenario of a confusing and contradictory patchwork of state court-driven climate policy decisions, it is more important than ever that legislators step up to create a federal climate policy.
Ryan Costello represented Pennsylvania in the House of Representatives from 2015-2019. During his time in Congress, he served on the House Energy and Commerce Committee and was a member of the Climate Solutions Caucus.
