In one of the Democratic Party’s recent debates, former Vice President Joe Biden raised the trial lawyers’ rally cry: Sue ’em! Societal woes got you down? Don’t worry — there’s a lawsuit for that! Opioid crisis? Sue. Climate change? Sue. Teen vaping? Sue.
Never mind that there are state and federal agencies appropriately addressing each of these issues. Never mind that opioid deaths are down 4.1% thanks to the Drug Enforcement Agency’s opioid production reduction and the Justice Department’s prosecution of negligent doctors and pharmacists. Never mind that U.S. emissions of key pollutants are decreasing, in some cases as much as 23%. Never mind that adult smokers for the first time have access to a safer alternative to tobacco. Facts just don’t make the same flashy social statement that suing evil industry makes though.
When did our country decide that litigation is the answer to every social ill we face? The U.S. tort system costs more than $373 billion each year as of 2019. This easily makes us the most litigious country in the world. That entails job loss in the real world as job creators spend valuable time, human resources, and funds to litigate case after case. Those dollars are not only taken away from creating new jobs but also swept away from researching and developing new consumer products and solutions.
Former New York City Mayor Michael Bloomberg, a self-funded presidential candidate, has gone so far as to fund an entire program that embeds activists in state attorneys general offices to sue industries. The State Energy and Environmental Impact Center at the New York University School of Law was established and initially funded in 2017 with a $6 million grant from Bloomberg Philanthropies. Its stated mission is to “support state attorneys general in defending and promoting clean energy, climate and environmental laws and policies,” including through “direct legal assistance to interested attorneys general to identify and hire New York University Law fellows who serve as special assistant attorneys general.”
Put differently, Bloomberg is buying state government employees to sue energy companies and blame them for climate change. This puts these hybrid Bloomberg-backed state employees in a position in which they are serving two masters — both the taxpayers whose resources and sovereignty they are using and the third-party organization that actually pays their salaries. One will always win out. There are clear ethical implications with this employment arrangement, and it sets a wildly dangerous precedent for our government.
While Biden and Bloomberg call for more lawsuits, judges say it’s the wrong way to solve issues such as climate change. U.S. District Judge William Alsup dismissed claims from San Francisco and Oakland that energy companies have created a “public nuisance.” He stated, “Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?” He went on to say that this is a policy question far greater than anything the courts can fix.
In New York, U.S. District Judge John M. Keenan also dismissed a similar lawsuit. He, too, found it highly inappropriate to utilize state public nuisance laws and courts to address global emissions, stating that solutions must be developed through federal legislation and foreign policy — not local lawsuits.
Many of these local lawsuits begin with entrepreneurial trial lawyers who have actively pitched local, county, and state governments, and even school districts, to sue job creators regarding these various issues. They claim they will help the governments garner huge awards or settlements that can be used for various projects. The lawyers are then hired by the government entity on a contingency basis. Ultimately, the lawyers keep, on average, one-third of any “winnings.”
A call by presidential candidates for further litigation in our already clogged court system is irresponsible policymaking. It is the job of state and federal regulators and policymakers to address climate change, the opioid crisis, and any other societal ill that may arise in the future, not the courts — and certainly not the trial lawyers.
Bailey N. Griffith is the public affairs manager for the American Tort Reform Association. She was previously an aide for past New Mexico Gov. Susana Martinez.
