- - Monday, January 25, 2021

Often, when bad things happen people want to hold someone responsible, irrespective of the facts. Currently, dozens of U.S. states and cities are suing a number of privately-owned oil and gas companies and unfairly seeking to hold them responsible for global climate change.

These cases exaggerate the private corporate role in greenhouse gas emissions (GHG) by ignoring structural changes to the oil market since 1974, and by misrepresenting GHG sources and timelines. This legal struggle reached a critical point earlier this month when the Supreme Court heard The Mayor and City Council of Baltimore vs. BP, et. al. Although the justices confined their line of questioning to the narrow — rather than broader — jurisdictional issue, their decision will still affect the other ongoing climate litigation.

Climate change is a serious problem requiring prompt attention and the devotion of substantial governmental resources. Although these lawsuits do not advance this effort, they are propelled by a confluence of factors.  For climate change activists and their wealthy patrons, the objective is to cripple the oil and gas industry in any way possible, and there is little doubt that the suits are part of a well-orchestrated campaign to do this, as pointed out by the Manufacturers’ Accountability Project.

For states and cities, the suits are seen as a potentially large source of revenue, and this fiscal incentive dovetails with the ambitions of many local politicians seeking to burnish their green credentials. When these factors are combined with a small number of contingency based law firms offering prepackaged “Big Oil” law suits, conditions are ripe for the proliferation of cases.

The legal “theory” is that fossil fuel “producers bear substantial responsibility for the adverse impacts of their products” and that by tabulating how much GHG each produced, the companies can be held liable.  Leaving aside, as the IPCC acknowledged, that there is still much unknown about climate science and event attribution, any responsibility apportionment would include “storyline” attributions based on value judgments, highly uncertain counterfactual assessments, and imprecise plausibility constructions. 

In attributing responsibility for climate change, the significance both of individual and government action also needs to be considered. As individuals, Americans increasingly have been concerned about climate change, but they have chosen not to alter their behavior. Continually soaring SUV sales are a testament to this. 

Federal and local governments, on their part, repeatedly pursue counterproductive climate polices, especially by such things as encouraging people to rebuild in coastal and river flood zones. Even Baltimore’s infamous “heat island” problem that disproportionately impacts minorities has more to do with the municipal government’s failure to maintain greenspaces and tress, than with climate change, per se.

Suing oil and gas companies will not solve the climate change problem. To solve the problem, we need to supersize funding for technologies like energy storage, and carbon capture, utilization and storage. Congress took a modest step in this direction with the most recent COVID-19 relief bill, but the appropriated funds need to be greatly enlarged.

We should harden our infrastructure to withstand extreme weather events by building seawalls where appropriate, and better buildings when constructing new facilities. We need to retrofit existing infrastructure to withstand extreme weather events, especially roads and rail lines. The energy efficiency of existing homes and buildings needs to improve, and federal and state governments can promote this through expanded grants and tax credits.

The Federal Flood Insurance program needs to be reformed to incentivize people to move out, not into, climate risk zones. We need to stop global deforestation by getting the governments of Brazil, Nigeria and others to stop forest destruction, and we need to massively plant trees at home.  Legislation like the “Trillion Trees Act” need to be taken seriously and expedited.

Assigning blame to a single industry is legally suspect since we all created this problem. By working together, we can develop substantial and innovate solutions to deal with climate change. Let’s stop pointing fingers and start working.

• Jonathan Chanis manages New Tide Asset Management, LLC, a company investing in listed equity. He formerly taught at Columbia University and worked at several financial firms, including Citigroup and Goldman Sachs.

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