More than two dozen cities and states have used climate lawfare. They want to make some energy production 'not feasible'
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Judges around the country are making quick work of climate lawfare, a welcome development following the U.S. Supreme Court declining to confront the issue earlier this year.
In recent months, three judges in Maryland and New York have dismissed climate-change lawsuits from public litigants who accuse energy companies of harming communities through emissions and concealing those harms from the public. Their decisions suggest an emerging consensus that federal law does not permit these kinds of claims, which fail on their own terms in all events.
More than two dozen cities and states have filed nearly identical climate-change lawsuits, creating significant risk for energy companies and consumers who enjoy the quality of life cheap and abundant power provides.
NJ LAWSUIT CLAIMING OIL COMPANIES CAUSE CLIMATE CHANGE DEALT MASSIVE BLOW IN COURT
The plaintiffs pleaded state law claims accusing the defendants of creating a public nuisance and deceiving the public. The energy companies have raised a variety of defenses. Their principal defense is that the climate claims are preempted by the Clean Air Act, which assigns emissions regulation to the Environmental Protection Agency, with limited carve-outs for states that do not apply in the instant cases.
Climate activists have taken their cases to court and, so far, that's not going well. FILE: People walk through the Brooklyn Bridge during a strike for climate on March 3, 2023, in New York City. Protesters demand New York State support found and pass the Climate Jobs, and Justice Package. (Photo by Leonardo Munoz/VIEWpress/Corbis via Getty Images)
Taken together, the recent decisions clarify the fundamental political goals of climate litigants. In dismissing the city of Baltimore’s climate lawsuit, Judge Videtta Brown explained that a successful state law climate claim "would operate as a de facto regulation on greenhouse gas emissions," echoing the like conclusions of the Second and Ninth U.S. Circuit Courts of Appeal.
The reason for that is obvious. In these cases, the energy providers face liability unbound. The prospective damages are so high that the defendants would fundamentally alter their business practices. That is the policy outcome the plaintiffs intend, which makes the preemption issue straightforward.
Indeed, U.S. District Judge William Alsup speculated that climate lawfare threatens the continued viability of fossil fuel production altogether. When dismissing Oakland’s climate change lawsuit in 2021, Alsup wrote that the damages sought "would make the continuation of defendants’ fossil fuel production ‘not feasible.’"
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Public reporting about the origins of the climate nuisance, fraud and misrepresentation cases fills out the picture. News accounts establish that a skillful network of academics, lawyers, celebrities and leftwing foundations are at work behind the scenes, at once incubating new legal theories and lining up financing. These facts aren’t necessarily germane for a court, but reasonable onlookers should not be obtuse about what’s going on here.
Apart from the preemption issues, a Jan. 14 decision in New York clarifies that climate deception suits don’t meet the requirements of a misrepresentation tort. As above, the reason is obvious.
"The connection between fossil fuels and climate change is public information," Judge Anar Rathod Patel wrote in dismissing the second of New York City’s climate change lawsuits. Courts have determined that "a reasonable consumer cannot have been misled" when the plaintiff does not identify salient facts that the defendant alone possessed.
The climate misrepresentation claims rest on a contradiction. The plaintiffs maintain that the public is broadly aware of climate change, and that "climate anxiety" shapes economic and political choices. But those same consumers have supposedly been deceived by the energy companies and kept in the dark about the connection between fossil fuels and a changing climate. As Patel wrote, the plaintiffs "cannot have it both ways."
Just as climate extremists try vandalism to get attention, they use legal strategies. Only the legal strategies could have far-reaching impact if they succeed. FILE: Bystanders attempt to stop two activists with Just Stop Oil as they spray orange powder paint on the ancient Stonehenge monument in the United Kingdom. (Just Stop Oil /TMX )
Rebranding extreme social engineering as environmental or consumer protection is an old liberal trick. Ironically, the pioneer of this tactic, Ralph Nader, contributed to the current climate policy problem with his successful "pro-consumer, pro-safety" crusade against nuclear power in the 1970s.
I am not sure that the Supreme Court is clear of climate lawfare. While most courts confronting the late wave of climate lawsuits have dismissed them, a few have allowed them to proceed to discovery and trial. The existing split in authorities thus seems like to grow. And the plaintiffs need only prevail in a handful of cases to extract the changes they seek. But it is surely positive for consumers and for the rule of law that the prevailing trend is against the plaintiffs.
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John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute.
