Evidence is plentiful that public officials should reject pleas to pursue these frivolous lawsuits. America’s climate agenda should not be driven by outside special interests.
By Bill Schuette and Rusty Hills
There’s an old joke about economists having predicted nine of the last five recessions that underscores how difficult it is to predict the future. It’s even harder to forecast the weather. The great Stephen Hawking once said, “One can’t predict the weather more than a few days in advance.”
Nevertheless, since 2017, states and municipalities have filed a rash of lawsuits alleging energy producers should pay billions in local weather-related damages. These lawsuits are more accurately “a money grab,” to quote a local critic, than about the weather.
In October, New Jersey filed suit claiming energy companies were responsible for Superstorm Hurricane Sandy. The stakes are high. The Supreme Court separately asked the U.S. Solicitor General to weigh in on whether Boulder’s lawsuit should be heard in state or federal court.
We are from Michigan, where our Great Lakes are part of our environmental heritage. They must be protected. As the former Michigan Attorney General and Michigan Court of Appeals Judge, Congressman and State Senator, and the former Senior Counsel to the Michigan Attorney General, we watch these cases closely. We can state from experience these lawsuits stand on questionable legal foundations, don’t reduce climate impacts, and fail to protect the environment. “Fact-checking” these lawsuits reveal that good faith apparently has been banished in their pleadings.
Here are eight reasons why state attorneys general and local officials should reject these lawsuits, and why courts should dismiss them:
First, these lawsuits falsely allege energy producers have engaged in deceptive marketing practices regarding climate conditions. Government officials have acknowledged the impacts of temperature warming, and American scientists have studied climate change, dating to the 1950s. Still, federal and state officials continued promoting the production and use of oil and gas while accepting the potential climate-related implications. Furthermore, various lawsuits amusingly show identical language used in most cases, where “copy and paste” is a convenient tool used by these law firms.
The hypocrisy is abundant. New York City filed a new lawsuit in 2021, all while remaining one of the largest consumers of petroleum and the sixth-largest natural gas consumer. Honolulu and Maui have advanced lawsuits. That decision doesn’t square with the fact that Hawaii’s legislature has had a policy in place since 1984 noting that oil and gas are “essential to the health, welfare, and safety of the people of Hawaii.” It further states “that any severe disruption in petroleum product supplies for use within the State would cause grave hardship.” Hawaii also holds the top spot as America’s most petroleum-dependent state, further discrediting the claim that communities there were somehow “deceived” about consuming oil.
Second, climate change occurs globally, and we all contribute through our daily activities. So why have the plaintiffs pinned the blame on a handful of companies who are selling a legal product? More than a quarter of greenhouse gas emissions comes from transportation, including the cars, ships, and planes we all use every day. Steel and iron are the largest energy-related emitter at 7.2% of global emissions. Why then single out one industry alleging liability when literally everybody shares responsibility? To say nothing about the responsibility that countries such as India and China have to be better environmental stewards.
Third, recently some local officials have adopted a bipartisan approach and rejected overtures from suit-happy law firms. Baltimore County’s Council said no to the offer. Democratic Councilman Tom Quirk expressed concerns noting, “I’m also not very inclined to jump on some of these ambulance-chasing types of legal strategies out there nationwide that I think often are more about feeding law firms as opposed to really doing good work.” Republican Councilman Todd Crandell said the case “seems to me like a money grab.” Democratic Council Chair Julian Jones questioned why “wouldn’t everyone in the world have standing” to sue for climate change damages? There’s more. Bar Harbor, Maine officials had similar reactions. Bar Harbor Town Council Chair Valerie Peacock reminded citizens that since everyone uses oil, “it’s almost like we’re suing ourselves.”
Fourth, federal judges have established that regulators and Congress, not the courts, should address climate change. That’s why not a single climate lawsuit to date has succeeded. Federal judges have reasoned the court system is not the proper venue to resolve the complex relationship between energy and the environment, or the dependency on foreign oil and rising gas prices. In 2011, the Supreme Court under Justice Ruth Bader Ginsburg unanimously ruled in American Electric Power v. Connecticut that the EPA, not judges who lack the scientific, economic, and technological resources, should address climate change remedies. In 2021, the Second Circuit dismissed New York City’s previous lawsuit noting “the Clean Air Act grants the Environmental Protection Agency — not federal courts — the authority to regulate domestic greenhouse gas emissions.” Both Obama and Trump Justice Departments opined that Congress should resolve climate-related issues, not the courts. The Obama administration successfully urged the Supreme Court to dismiss the claims in the AEP case.
Fifth, state and municipal bond disclosures show officials’ inconsistency with reference to the material risk of climate change. A recent Wall Street Journal op-ed by investment analyst R.A. Moss exposed that while some governments are saying in bond disclosures that they cannot accurately predict or quantify the effects of climate change, they’re simultaneously filing legal complaints alleging specific climate-related damages. New Jersey said in bond disclosures that it cannot “predict the impact that these climate events may have on its financial condition.” Honolulu and Baltimore’s bond offerings make similar admissions, while they seek paydays from defendants over specific damages.
Sixth, these lawsuits are not really driven by altruistic elected officials, but rather by privately funded special interests. Some charitable foundations have explicitly embedded and funded private lawyers in at least five state attorneys general offices to support the lawsuits. An American Tort Reform Foundation report shows that in some states that have housed privately funded attorneys, these attorneys have signed the plaintiffs’ legal complaints. Our judicial system should be free from special interest agendas and private funders.
Seventh, there is already federal money on the table earmarked for weather-related infrastructure damages. Instead of seeking money from energy producers, cities and states could access federal resources and funds that are still available. As of 2018, the Federal Emergency Management Agency still had $6.7 billion available for states to address damages. Rhode Island only used $6.1 million of its $17 million allocation, yet filed a lawsuit that same year attempting to collect local infrastructure compensation. Why wasn’t the state using the money available to them?
Eighth, innovation will protect our environment. Policymakers and the private sector can help advance the innovations we need to make real progress on climate challenges. That’s already happening as the transition from coal to natural gas for electricity led to a 32% drop in carbon emissions since 2005. Lawsuits are counterproductive since they could reduce capital for energy companies from innovating the next generation of clean energy solutions.
Evidence is plentiful that public officials should reject pleas to pursue these frivolous lawsuits. America’s climate agenda should not be driven by outside special interests. Our goals should be cleaner skies and environmental safety. The better path is partnership and innovation to advance climate solutions.
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Bill Schuette is the former Michigan Attorney General, Judge of the Michigan Court of Appeals, Director of the Michigan Department of Agriculture, Member of Congress, and Michigan State Senator.
Rusty Hills is the former Senior Counsel to Michigan Attorney General Bill Schuette, former Chairman of the Michigan Republican Party, and Communications Director for Governor John Engler.