Due to a lack of public support, legislative feasibility, and political will, courts have become the favored venue for environmental activists to advance their preferred climate agendas. The result has been a flood of activist-backed lawsuits, which have been facilitated by state attorneys general, mayors, and local governments, seeking to cash in as plaintiffs against energy companies. The justifications for these lawsuits inevitably stand on shaky legal ground. More concerning is the fact that the suits also threaten to undermine much of the progress that private companies and manufacturers have made to date in reducing emissions while responding to consumer demand for reliable power and fuels.
On January 19th the Supreme Court heard oral arguments in BP Plc v. Mayor & City Council of Baltimore. This is one of the dozens of climate lawsuits that have popped up across the country. The underlying premise of the public nuisance lawsuits, like one brought in my home state of Rhode Island, is that energy companies and manufacturers are responsible for the effects of climate change merely because they extract and refine the resources, we all use to light our cities, power our vehicles, and to heat our homes. Climate change is a global issue and everyone to a certain extent is responsible for the effects of climate change because of our day-to-day activities. If you drive a gasoline powered vehicle, heat your home with oil, natural gas or propane or fly on vacation…you are contributing to the negative impacts of climate change. This fact appears to be lost on the municipalities and plaintiffs’ attorneys pursuing these lawsuits.
The Supreme Court hearing may have seemed mundane on the surface — it had to do with a jurisdictional matter in the Baltimore case — but the justices’ decision will have a momentous impact on the future viability of climate lawsuits. This basic question of which court these cases will be heard in is important because many of the plaintiffs represented in these cases are hoping to try these lawsuits in state court where they are likely to find a much more friendly audience.
This sentiment is reinforced when one considers the fact that federal judges in recent years have consistently ruled that climate policy is not an issue for the courts to address. Furthermore, the Supreme Court issued a unanimous decision in 2011, authored by the late Ruth Bader Ginsburg, which determined solving the issue of climate change is the role of legislators and regulators, not the courts. Should the Supreme Court find that current climate lawsuits fall under federal jurisdiction, it is much less likely that this line of legal action would be successful.
Recent polling from the Manufacturers’ Accountability Project indicates the American people are ready to move beyond these lawsuits. Only 13 percent of voters believe it is important to sue over climate change while 50 percent of Americans strongly agree with the sentiment that “we must work to develop and innovate meaningful solutions to climate change, not blame one industry for a problem we’ve all contributed to.” Certainly, recognition by the American people that they themselves are equally to blame for the negative climate repercussions of using fossil fuels as consumers.
Energy companies and manufacturers have for years been driving solutions to reduce their carbon footprint and address climate change. From 2010 to 2015, for example, the five biggest energy manufacturers reduced their emissions by an average of 13 percent, outpacing the 4.9 percent reduction the United States as a whole realized over the same period. All of this progress has come in spite of the fact that many of these companies have been distracted by frivolous lawsuits and forced to spend millions of dollars fending off dubious claims in court. By leading the way in reducing emissions these companies also helped the United States realize the largest absolute decline in carbon emissions of any nation since 2000, as noted by the International Energy Agency (IEA).
At the end of the day, we can both maintain a modern energy economy and be responsible stewards of our environment. Climate action lawsuits are distracting from making real gains in protecting the environment. Attempting to punish energy companies through lawsuits now will only risk reversing the gains we have made in reducing emissions and protecting the environment.
Doug Gablinske previously served in the Rhode Island House of Representatives from 2006-2010 and is the former Executive Director of The Energy Council (TEC-RI).