- - Monday, November 26, 2018

ANALYSIS/OPINION:

Between the Acting New York Attorney General’s lawsuit against ExxonMobil and the Supreme Court’s decision to not intervene to prevent a lawsuit brought by 21 young Americans from moving forward, climate litigation is once again a hot news topic. But, we should be sensible when deciding what branches of government should navigate the heated debate.

The issues surrounding climate change are scientific and largely political. To the extent the law is involved, we need deliberative legislatures and expert agencies to craft responses after considering evidence and examining competing policy recommendations.

From the perspective of comparative institutional competency, those branches of government are best suited to those tasks. Judges, on the other hand, do none of that well. For those who want judges to get involved: Would you want a judge to have the power to deny climate change and give that conclusion legal effect? If not, then why would we trust judges who recognize climate change as a danger to know how to balance concerns and effectively regulate to control climate change?

The bottom line is that we can believe climate change is real and needs to be addressed, yet disbelieve that courts are well-suited to the task of setting policy on it.

Nevertheless, a recent nationwide strategy has looked to unelected judges and juries to craft climate policy. What might be called “the judicial strategy” started in 2015, with states like New York and Massachusetts beginning “civil investigative demand” inquiries into energy companies. And these efforts reached new heights recently when Acting New York AG Barbara Underwood filed a civil suit against ExxonMobil claiming it defrauded shareholders by supposedly hiding knowledge of climate change impacts through accounting practices that are not all that unusual across myriad industries.

In concurrent and coordinated action starting in 2017, a series of lawsuits have also been filed across the country — by municipalities in California, Colorado, New York, Maryland and Washington, as well as by the state of Rhode Island — against energy companies claiming they are liable for billions in damages for climate change, asking the courts to endorse novel modern expansions to ill-fitting common law tort doctrines like “public nuisance.”

Some of these efforts have been rebuffed in the courts. Two federal district courts have already wisely dismissed major lawsuits that were brought under this regulation-by-litigation template.

In June, the U.S. District Court for the Northern District of California dismissed a public nuisance climate change-based lawsuit brought by the cities of Oakland and San Francisco. The court held that it was not the proper role of the courts in a system of separated powers to resolve these types of claims. It refused to entertain a theory of liability that the court called “breathtaking” in scope, especially when court intervention may actually “interfere with reaching a worldwide consensus” on how to address climate change. The judge explained that “questions of how to appropriately balance these worldwide negatives [of climate change] against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.”

A month later, the U.S. District Court for the Southern District of New York dismissed a similar public nuisance case against energy companies brought by New York City. Following the U.S. Supreme Court’s precedent in American Electric Power Co. v. Connecticut, the court explained that Congress has displaced the courts from any role that they might have had in identifying fault or prescribing remedies for claimed climate change contributors by “expressly delegat[ing] to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.”

Put simply, the court concluded that “the serious problems caused” by climate change “are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”

These two federal judges got it right. Furthermore, the same separation of powers rationale causing those courts to dismiss those lawsuits applies whether the novel theory is one of public nuisance, consumer fraud like in the new New York lawsuit, or some other creative tactic to get policy issues into court.

Yet, many states and municipalities persist in trying hard to pursue one or another type of climate case through this judicial strategy.

The message from these recent federal court opinions should be clear: If we are to resolve the complex issues regarding climate change, we should turn our attention away from the courts and back to the policymaking branches.

• Donald J. Kochan is a visiting scholar at Georgetown’s Center for the Constitution and the Parker S. Kennedy Professor in Law at Chapman University Fowler School of Law in Orange, California.


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