There is a natural tendency for government to go too far. Good intentions can quickly be subverted by a desire for control, for power, with a tendency to over-enforce, over-regulate, or over-litigate. It is the proverbial solution in search of a problem fiasco. Fortunately, our Founding Fathers established a brilliant system of checks and balances to hold these urges at bay.
Coastal elites in California and New York are trying to re-order the entire economy through litigation against major energy and manufacturing companies. These job creators are purportedly violating “common law” because they have allegedly contributed to global warming, which constitutes a “public nuisance,” and therefore owe the litigious cities billions of dollars. Do not be mistaken, these suits by New York, San Francisco, Oakland and others are not about the law, they are wanton attempts at jackpot justice in order to fix local deficit problems and set national energy policy. The hubris is astonishing.
Equally astonishing is the duplicity of these municipalities. In one breath, they seek to blame American manufacturers for the entirety of global climate change by suing them to pay for local infrastructure projects. In another breath, the California cities assert on their bond filings that climate change did not deteriorate their sea wall based on research they claim won’t show harm until after the year 2100. This is shameful at best.
This is why I joined a 15-state coalition asking a federal judge to dismiss this politically motivated lawsuit. Allowing a California courtroom to set energy policy for Oklahoma and the rest of America is unacceptable. If this precedent took root, it could carve a path for anything California or New York deems to be a public nuisance.
[Also read: Brett Kavanaugh is skeptical of climate change regulations but not ‘dogmatic,’ experts say]
I’ll admit, the motion to dismiss was a bit of a Hail Mary. It was before President Clinton-appointed U.S. District Court Judge William Alsup, the same judge who impeded Trump administration efforts on the DACA in January. However, Alsup listened to our amicus and affirmed: you cannot litigate what legislators refuse to legislate and regulators refuse to regulate.
Alsup noted in his opinion: “courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The Court will stay its hand in favor of solutions by the legislative and executive branches.”
Alsup’s order is not new legal precedent. The U.S. Supreme Court made this abundantly clear several years ago. It is clear Alsup agrees with us and upheld that precedent. A New York judge has now done the same.
Bottom line, coastal elites cannot dictate national energy policy or curb economic activity that occurs wholly outside their state. While two judges have dismissed lawsuits, the fight is far from over.
These actions are the definition of lawsuit abuse. It is embarrassing to the profession that attorneys representing the California cities felt like these actions were worthy of the mighty sword of government-sponsored litigation.
The sad reality is these California and New York lawsuits are not about the law, nor do they help the environment or drive policy change. They are cities contorting themselves to seek a quick payday and seismic political change through the courthouse. They force manufacturers to spend millions in legal bills, instead of millions on creating new jobs or more environmentally friendly technologies. The lawsuits do not assert that manufacturers violated any specific state or federal statute. Instead, they assert that the U.S. manufacturers violated state tort law, namely that climate change is a public nuisance for which manufacturers are responsible.
Hopefully, other judges will use these recent dismissals and the Supreme Court precedent as the basis for dismissing copy-cat, climate change public nuisance actions brought by cities and counties hoping for a quick payday and to score some political points.
I am certain additional localities will be hoodwinked by outside attorneys, who seek 25 percent or more of any verdict or settlement, to bring actions similar to New York, San Francisco, or Oakland. This has already occurred in Colorado and Rhode Island.
Republican state attorneys general stand ready to meet these abuses in the trenches, too, and we will prevail, just as we prevailed against job-killing Obama overreach.
Mike Hunter serves as attorney general of Oklahoma. He is a Republican.
