- - Tuesday, June 26, 2018

ANALYSIS/OPINION:

What is really behind the litigation now moving through courts in several states where a handful of energy companies are blamed for allegedly causing hundreds of billions in environmental damages?

State officials in 20 parishes in Louisiana, mayors in several cities in California, Colorado, and the mayor of New York City are all rubbing their hands together in greedy anticipation of a massive payout from the energy industry. While the motivation behind these cases is clear — a meritless, multi-billion-dollar shakedown of American energy companies — a closer look at the legal “strategies” of these lawsuits reveals just how flawed and ridiculous their arguments really are.

If these arguments were answers on a law school exam they wouldn’t even garner a D-. If I were Mayor Bill de Blasio in New York or officials in California, Colorado and Louisiana, I’d caution them not to run to the bank just yet.

Take the case in Louisiana. Trial lawyers there are preparing lawsuits blaming coastal erosion on decades-old drilling operations which have long since ceased. Their fanciful narrative holds that oil drilling in the Pelican State’s delta region, which started in the 1930s, is solely responsible for swaths of lost landmass. Never mind that they haven’t produced a shred of evidence linking drilling with coastal erosion.

Or mind you, they ignore the fact that energy producers were encouraged by state officials to explore for energy precisely to develop local economies. The Army Corps of Engineers along with state regulators approved, licensed and heavily regulated the very projects over which the trial lawyers now feign dismay.

Now for the legal strategy. You won’t hear the Louisiana trial lawyers utter the words “climate change” for fear of moving the venue to federal courts, losing their unique home field advantage where undue influence in political and judicial realms are legion. Rather than focus on using legitimate legal arguments, the trial lawyers are confident that a Louisiana judge will hand them the jackpot they seek.

In fact, Judge Michael Clement has scheduled five of the lawsuits against energy companies in Plaquemines Parish for 2019 and served notice that he personally intends to preside over them. Apparently, it is not a problem that the plaintiff’s law firm, Talbot, Carmouche & Marcello, contributed $10,500 to Judge Clement’s 2015 re-election campaign. It’s also not by accident that the U.S. Chamber of Commerce Institute for Legal Reform places Louisiana at the very bottom of its 2017 Lawsuit Climate Survey: Ranking the States.

The reality is that coastal erosion in Louisiana is multi-faceted. Because the Army Corps of Engineers built the levee system along the Mississippi River to diminish the threat of flooding in populated areas, the levees allow coast-maintaining silt to bypass wetlands and dump into the Gulf of Mexico. Hurricanes, tropical storms along with natural erosion are also large contributors to land loss in Louisiana, as is human activity.

Let’s turn to the lawsuits filed in California, Colorado and New York City, where the plan is to punish five or more energy companies for an entire planet’s worth of global warming.

Trial lawyers representing San Francisco, for example, insist that the companies’ oil and gas production will cause sea levels to rise, flooding roads, residences and vital city infrastructure. Yet San Francisco told investors last year that “the City is unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur.”

Sometimes politicians haven’t even paid attention to what they’re saying in court versus what they say in public. In New York City, Mr. de Blasio champions additional residential development along the city’s waterfront when talking to investors, yet his lawsuit against energy companies describes New York as becoming the new lost city of Atlantis. Which is it?

In the case of both financially mismanaged cities, the quest for billions blinds them to their hypocrisy. And both cases are likely to run into the buzz saw of Supreme Court precedent. As recently as 2011 in American Electric Power v. Connecticut, the court ruled that the Clean Air Act pre-empts public nuisance torts against corporations for greenhouse gas emissions.

Climate policy falls under congressional jurisdiction, which means ultimately related litigation would be remanded from Louisiana to federal courts, which are immune to shady political practices and will likely dismiss much of the “junk science” peddled by the litigants. Frankly, the only winners here will be the trial lawyers’ firms that jack up million-dollar billing fees on cases in the hope that one of them land them a pot of gold.

Behind the thin veneer of phony environmental justice, it’s obvious that all of these trial-lawyer-driven cases are really about the prospect of big-time bonanzas for a greedy few. Crippling the energy industry in states where energy companies are major contributors to local economies and provide thousands of high-paying jobs is a huge mistake. These lawsuits are absurd, are out of their proper jurisdiction, and the judges presiding over them should toss them out of their state courts.

• Horace Cooper is a legal commentator and a fellow with the National Center for Public Policy Research.


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