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Doomed Climate Lawsuits Waste Precious Time and Money

February 12, 2020

It’s time for federal and state courts to say enough is enough and block all such lawsuits. It’s the job of elected branches, not the judiciary, to determine United States climate and energy policy.

For the second time in two months and the fourth time in two years, courts have tossed climate lawsuits.

On January 17, a three-judge panel of the Ninth Circuit Court of Appeals dismissed a lawsuit brought on behalf of 21 youths by the climate legal advocacy group Our Children’s Trust. The case was an attempt to force the federal government to impose limits on fossil fuel use.

This decision comes just a month after New York state Supreme Court Justice Barry Ostrager dismissed a lawsuit brought by state Attorney General Letitia James against ExxonMobil.

The suit accused ExxonMobil of lying to investors about its business prospects in light of the possible costs of government regulations to fight climate change.

“The office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor,” Ostrager wrote in his December 2019 decision.

Now, the Ninth Circuit Court has rejected the youths’ climate lawsuit against the federal government for supposedly violating their constitutional rights to life, liberty, and property by encouraging the use of fossil fuels, which emit greenhouse gases.

The Trump administration argued the youth lawsuit represented “a direct attack on the separation of powers,” with the legislature and the executive, not the courts, being the sole branches of government responsible for determining the United States’ energy policies and responses to climate change. The Ninth Circuit agreed.

“The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2,’” the majority opinion said. “Reluctantly, we conclude that such relief is beyond our constitutional power. [A]ny effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”

These are not the first cases courts have tossed in which plaintiffs have attempted to get the unelected judiciary to impose nationwide energy restrictions, but they should be the last.

In a 2018 case before a federal district court in New York, the judge noted New York City was being hypocritical in suing oil companies for damages from purported climate change, since the city itself benefitted from using fossil fuels. “[I]t is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades,” the judge concluded.

Also in 2018, a judge for the federal district court in the Northern District of California dismissed a lawsuit brought by the cities of Oakland and San Francisco against five oil companies arguing the companies should be held liable for harms allegedly caused by climate change.

In that case, Judge William Alsup ruled Congress and the president were best suited, as opposed to cities, states, or the judiciary, to determine what, if anything, to do about carbon dioxide emissions from the use of fossil fuels.

“[P]laintiffs’ claims require a balancing of policy concerns … Importantly, ‘[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,’” wrote Alsup.

Going further, Alsup stated the potential harms of fossil fuel emissions must be weighed against the tremendous benefits they deliver.

“We must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal,” Alsup said. “Without those fuels, virtually all of our monumental progress would have been impossible. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”

Surely there are better uses for the millions of dollars in public and private funds, and thousands of hours of effort of the government officials, lawyers, scientists involved, in bringing and defending against these flawed lawsuits, which courts have repeatedly tossed, only to spring up time and again, whack-a-mole-like in other federal or state jurisdictions.

It’s time for federal and state courts to say enough is enough and block all such lawsuits. It’s the job of elected branches, not the judiciary, to determine United States climate and energy policy.

[Originally Published at Orange County Register]

Author
H. Sterling Burnett, Ph.D. is a Heartland senior fellow on environmental policy and the managing editor of Environment & Climate News.
hsburnett@heartland.org