Scott Pruitt, the administrator of the Environmental Protection Agency is taking the lead on this, but expect it to spread to other agencies, including the DOJ. It’s a good start, but there are other problems in the lawfare arena that need to be addressed to ease tensions and restore order to the legal system.
Consider the attacks on Big Oil, which started with a novel legal theory that presupposed the U.S. oil and gas industry deliberately conspired for several decades to deceive the public about climate change.
That theory became an allegation which, when backed by several of the attorneys general of more than a dozen states, turned into litigation that threatens to set a number of dangerous legal precedents while undermining the nation’s economic vitality.
The progressive activists behind it all got the idea to go after the oil and gas industry after a similar assault against Big Tobacco turned out to be a goldmine for most everyone involved. But the underlying facts are not the same. Any honest reading of recent history makes clear the oil and gas industry engaged honestly in the debate about the possible causes of climate change and about practical solutions.
If, as some have charged, there’s a conspiracy at work, it’s made up of environmentalists, lawyers, and likeminded bureaucrats and politicians for whom things like sue and settle have been meat and potatoes.
One of the nation’s largest plaintiffs firms, Hagens Berman, recently merged with the Boston-based Pawa Law Group, which spent more than a decade field-testing the best legal theory for pursuing oil and gas companies. They’ve claimed energy companies’ business and product are responsible for wild fluctuations in climate that have exacerbated hurricanes and other natural disasters. Just last month, San Francisco announced it would sue several oil companies using nuisance laws, and standing right alongside the San Francisco city attorney were none other than lawyers from Hagens Berman and the Pawa Law Group.
These lawsuits, and others like them, come on the heels of efforts by 18 state attorneys general, all Democrats seeking to curry favor with the environmental lobby, to prosecute energy companies. Their coordinated attack on Big Oil may be unraveling as it collapses due to lack of evidence and allegations of collusion with green activists and plaintiffs attorneys, but it hasn’t yet completely gone away. This kind of litigation, such as sue and settle, is a perversion of the law masquerading as policymaking. Law firms promise state and local governments they will spend thousands of man hours concocting cases against oil companies. In exchange, they get to keep a percentage of the winnings, while ambitious politicians looking to curry favor with liberal activists and donors jump on board.
This is a terrible way to make policy. And when the government contracts with private firms to do this kind of legal work it undercuts prosecutorial discretion, ignores the fundamental purpose of state attorneys, and allows the pursuit of financial reward to interfere with the pursuit of justice.
The law firms jumping on the anti-oil bandwagon are doing so because they think there’s money in it. If they succeed with Big Oil, expect snack foods, restaurants, the beverage industry, and other deep-pocketed businesses to come next. The environmental Left is exploiting both the public’s biases against large corporations and its affinity for conspiracies to try and make a fast buck, just like with sue and settle. Before long, expect the nation’s courts to be overrun with state-sanctioned frivolous lawsuits where politically motivated verdicts are decided before a complaint is filed or evidence gathered.
If states are serious about corporate regulation in the service of climate policy, policymakers should fully account for facts and carefully consider the economic impact of laws and regulations. Their legislatures should approach the issue with the seriousness it demands. But when mercenary lawyers and political groups team up to loot the oil companies using baseless accusations, they only complicate the challenge of aligning the imperatives of economic growth and environmental stewardship.