Climate change is a vital issue, and we should all expect our elected officials and duly appointed expert regulators to develop and execute appropriate public policy that serves the public interest.
Exactly how that should be done is the subject of great dispute and controversy. Some believe that any and all activities that do or could harm the environment should be all but eliminated. Others put a far greater emphasis on the impact of regulation and mitigation on our economy and prospects for growth. Reasonable people can, and do, disagree about these issues.
One topic that should not be in dispute, however, is the role of litigation in this area. Courts are appropriate for settling legal disputes. They should not be setting environmental policy that has a profound impact on countless aspects of our daily lives and the continuing prospects for a strong and vibrant economy. Regrettably, that is not the case, as certain climate change advocates have begun trying to sue their favored policies into law.
Consider, for example, the lawsuit brought by Our Children’s Trust. According to the lawyer for the organization, “The courts are our last, best hope at this moment of irreversible harm to our planet and life on it. … The political branches of government have had decades to stop destroying our climate system; now only court-ordered mandates will stop the destruction our governments are perpetuating, and increasingly supporting.”
This lawyer, Julia Olson, is suing to end the use of fossil fuels. But this is just the tip of the climate change litigation iceberg. In recent months, we have seen an increase in state and local climate litigation in several California counties, as well as New York and Massachusetts. Though the litigation may thus far seem to be sporadic attacks against the energy industry, in reality it is a highly coordinated effort.
We know industry-wide litigation is on the horizon. Trial lawyers will soon unleash an organized offensive akin to past efforts surrounding asbestos, tobacco, and others. The primary claim thus far is that energy companies have allegedly misled the public about climate change, in much the same way others have been targeted. Therefore, the argument follows, they should be forced to pay millions in settlements.
The well-coordinated trial bar is not to be underestimated, as it effectively employs its litigation playbook using the same tried and true tactics they have before:
- Identifying a broad societal issue and casting blame on a narrow set of defendants that are easily painted in a highly negative light.
- Seeking to further demonize the potential defendants in the court of public opinion.
- Testing novel legal theories in friendly jurisdictions.
- And leveraging high-profile events such as recent hurricanes to further galvanize public opinion.
Once they experience success with a novel legal theory, they then expand the litigation to a broader sphere in a desperate attempt to pad their own wallets. It’s a method that allows the trial bar to engage in a game of trial and error that takes advantage of pressing global issues and manipulates taxpayers into funding their research into new methods of collecting huge settlements.
Furthermore, these probes into and cases against energy companies are highly political. Louisiana Gov. John Bell Edwards hired generous campaign donors to manage his state’s mounting coastal lawsuits against the energy industry. Those lawyers will reap a windfall, while the state plans to use the proceeds to close a budget deficit. Now-former New York Attorney General Eric Schneiderman, who recently resigned in disgrace, and Massachusetts Attorney General Maura Healey utilize these ploys for influence with wealthy megadonors whispering directives in their ears.
Tom Steyer is a well-known megadonor to liberal candidates across the United States who launched NextGen Climate Action. NextGen is a super PAC known for promoting efforts to recruit federal and state officials to bring charges against energy companies, particularly Exxon Mobil, for allegedly misleading the public on climate change.
However, in December it was revealed that Steyer hid any involvement in such efforts to initiate taxpayer-funded litigation. He disguised his role because he wanted the litigation to seem organic, not like it was concocted by a billionaire with a political agenda. But Steyer has played a central and instrumental role in a nationwide operation designed only to shake down energy companies.
This type of litigation has a profound and significant negative economic impact and should be called out for the sham that it is. If allowed to continue unchecked, the costs will not be restricted to the companies so arbitrarily pursued. Rather, taxpayers will foot the bill and the trial bar will move on to the next target to line its pockets.
Tiger Joyce is the president of the American Tort Reform Association.
