The nationally coordinated climate litigation campaign against energy companies is plagued by flaws and failures (and has been for years), according to a group of legal experts who discussed the lawsuits during a recent panel discussion.

Hosted by George Mason University Antonin Scalia Law School’s Law & Economics Center, the event focused on the United States Court of Appeals for the Second Circuit’s recent decision affirming the dismissal of New York City’s first climate change lawsuit against energy companies, holding that the courts are not the proper place to regulate emissions. This decision is independent from the latest case filed by the city last week – though its chances of success are also slight.

Climate Change Requires a Political, Not Judicial, Solution

During the panel discussion, citing previously defeated cases also targeting the energy industry – including AEP v. Connecticut, Comer v. Murphy Oil, Kivalina v. ExxonMobil, and California v. General Motors – Mark W. DeLaquil, a partner at the law firm BakerHostetler, said that the Second Circuit’s decision extends the pattern of federal courts rejecting such cases:

“In my view, the Second Circuit’s decision affirming the dismissal of New York climate change public nuisance lawsuit fits comfortably into the treatment of these types of lawsuits by federal courts over the last decade.”

In addition to the above referenced cases, adding to this string of defeats for climate litigation proponents is a 2018 decision by a California federal judge who ruled against San Francisco and Oakland’s climate lawsuit, asserting that “[Climate change] deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” This decision has since been appealed, with a petition for writ of certiorari now before the U.S. Supreme Court. (emphasis added)

Another panelist at the event, Walter Olson, a senior fellow at the Cato Institute, agreed with DeLaquil on the federal judiciary’s view of such lawsuits:

“[The New York decision] is part and pattern of federal courts being highly unsympathetic to localized litigation attempting to address climate change.” (emphasis added)

DeLaquil went on to echo the Second Circuit’s view that climate lawsuits should be handled by political leaders, not the courts:

“I think the common theme among these cases is that the questions that are raised are simply not appropriate for judicial resolution.

“…Dealing with those questions is why you see so many unusual political question doctrine dismissals across these cases; why the New York court would not find the existence of a state law; and why it would be uncomfortable attempting to address these types of questions.” (emphasis added)

Global Climate Change, Beyond the Scope of State Courts

Joining DeLaquil and Olson on the panel was also Catherine Sharkey, a professor at the New York University School of Law. During the discussion, Sharkey pointed out a major flaw with the various municipal- and state-driven climate change cases: should they reach judgement from the courts, it’s not workable to apply a patchwork of state laws to our national energy industry:

“We can talk about the fact that we have fifty different states with potentially different rules, yet we have manufacturers manufacturing products on a nationwide level. … We might step back and think about, if we were just asking as an intellectual matter, do we wish for Congress to resolve these types of regulatory challenges? Do we wish for federal regulatory agencies to do so? Or do we wish to have federal and state courts involved?”

Following Sharkey, Walter Olson highlighted another flaw posed by climate change litigation targeting the energy industry: climate change is a global phenomenon which everyone contributes to. What further complicates this issue, he noted, is the fact that everyone benefits from fossil fuels. This makes the concept of pinning the blame for the impacts of climate change on a small group of energy companies nonsensical:

“The problem with extending to what are general social problems affecting not just everyone in New York but everyone in the world, and which are contributed to by almost everyone in the world…is If everyone is in on it, if everyone is benefitting from the thing, the judges are less likely [to stop it]. … Everyone in all of these plaintiff cities lives in a city that was made possible by the combustion of fossil fuels. That’s just the way it is.” (emphasis added)

Later in the discussion, DeLaquil, who focused on the cases in court rather than the legal theories behind them, warned that the scope of climate change is beyond what courts are equipped to address, implying that even successful litigation would not deliver a solution to climate change (something many pro-litigation activists have admitted):

“These climate change nuisance suits are [the classic public nuisance suit] on steroids on steroids. You don’t have one cement plant with a relatively defined pollution plume; you have every fossil fuel-powered plant in America, potentially. You have the oil fields in the Bakken, you have the Marcellus Shale, you have everything and you want a court to try to make a remedy… To me, it really is a judicial competence problem.”

To Date, Industry Has Succeeded on the Merits

Building on this analysis, he noted that, thus far, energy companies have won the cases that actually went to court on their merits. One case he cited was that brought by the New York attorney general, which it lost after a devastating trial in 2019. DeLaquil predicted the litigation campaign will continue to be met with more defeats:

“We’ve talked a lot about lawsuits. But I believe there was a case that went to trial on a fraud type claim against Exxon based on alleged knowledge of climate change that resulted in a verdict in Exxon’s favor. Just based on that, I’m not sure the consumer protection, fraud type claims necessarily are going to have the legs the plaintiffs are suggesting.” (emphasis added)

Several of the latest climate change lawsuits targeting energy companies – including those filed by Minnesota and Washington, D.C. – focus their arguments on claims of consumer deception rather than public nuisance, as many of the earlier filed cases had.

Climate Change Does Not Belong In the Judiciary

Climate litigation supporters often talk about the novel legal theories that they claim will hold energy companies responsible for climate change costs. However, taking legal theories in new directions is no sure guarantee for success, as DeLaquil, Olson, Sharkey and other experts have said. This is true for several reasons, perhaps the most important being: climate change is not an issue appropriate for the courts to decide.