The U.S. Chamber’s Institute for Legal Reform (ILR) recently released two reports examining the impacts of climate liability lawsuits in the United States. Waking the Litigation Monster focuses on the misuse of public nuisance action, while Mitigating Municipality Litigation examines the growing trend of municipalities engaging in costly lawsuits against different industries. The reports detail the ramifications of such litigation and offers potential solutions to mitigate such efforts in the future.
The ILR reports demonstrate how these litigation efforts are being promoted by lawyers and politicians who are often more motivated by money and politics than the public interest. For example, the use of a contingency fee model – in which a lawyer’s pay-out is an agreed upon percentage of the settlement awarded– for legal counsel in large class-action lawsuits has led to plaintiffs’ lawyers to increasingly seek out politicians to undertake costly litigation against companies on issues such as climate change. As Mitigating Municipality Litigation notes:
“As described in Part 1, plaintiffs’ lawyers have been the driving force behind the current wave of municipal litigation involving climate change, opioids and data privacy, just as they were in suits against lead paint and tobacco in previous decades. Those lawyers often conceive of and pitch these cases to local officials. (pg. 32; emphasis added)
This is the same tactic employed by plaintiffs’ lawyers at Sher Edling, which has filed several climate change public nuisance lawsuits against as many as 37 fossil fuel companies on behalf of state and local governments over the past two years. While none of their cases have yet earned a “win” in court, that hasn’t stopped them from pitching new clients.
Yet, in spite of the massive costs to municipalities associated with a years-long litigation process, more and more local politicians are choosing to file climate liability lawsuits to boost their public profile. As Mitigating Municipality Litigation states:
“And the growth of these types of claims may also evidence an increasing shift of power from Congress and the federal government to local governments. In particular, local elected leaders may see opportunities for publicity and political gain in taking up causes popular with their backers.” (pg. 8; emphasis added)
It’s not only problematic that climate liability lawsuits are being pushed by financially motivated lawyers and spotlight-seeking politicians, but they are doing so in spite of the lawsuits’ long-shot odds of success. Federal judges in both California and New York have already tossed public nuisance climate cases brought by cities on the basis that courts are not the appropriate place to handle issues that spread beyond a single city’s borders, but rather these issues should be addressed by the other two branches of government. The Litigation Monster report sums this point up nicely, stating:
“Unlike the discrete, localized interferences that public nuisance was designed to address, local government plaintiffs have sought to expand the tort’s reach to include public policy matters that implicate much more widespread interests. In many cases, these interests reach the national, and even international, level. These large-scale societal challenges are better dealt with by the legislative and executive branches, which, unlike courts, are uniquely capable of balancing all of the competing needs and interests in play.” (pg. 32; emphasis added)
In order to limit the potential of more municipalities filing litigation, the ILR outlined four possible solutions that a state could employ: reduce a municipal plaintiffs’ authority to bring a suit; eliminate the defendants who could be targeted in a municipal lawsuit; limit the causes of action that form the basis of municipal litigation; and deprive municipal plaintiffs of a forum in which to bring an action. As a whole, these options could help rebalance power between states and localities, allowing states – rather than fee-seeking lawyers – to act in the best interest of its citizens.
Some of the actionable steps the ILR suggests are:
Aside from strategies to deter these lawsuits by disincentivizing lawyers from pursing them, the ILR outlines ways to mitigate litigation based on the unique nature of the climate liability lawsuits. For example, the climate suits are seeking compensation for “alleged future harms” (e.g. the impacts of sea level rise), yet it’s entirely reasonable for a state to enact a threshold on plaintiffs by requiring them to prove such damages. That the plaintiffs in these lawsuits are seeking monetary damages now for harms that might not even transpire is a primary criticism of these lawsuits, and one of the reasons why many believe they have such a small chance of success:
“The suits face an uphill battle for the reasons expressed by the federal district courts: they attempt to address a global problem with a local, non-uniform solution, and seek damages for speculative future harms.” (pg. 12)
Moreover, considering oil and natural gas are integral to our modern societies, states could “expand the doctrines that bar recovery when the plaintiff itself contributes to the alleged harms.” This was a key point Judge John Keenan relayed to the attorney bringing New York City’s climate lawsuit shortly before he dismissed the city’s case from federal court last July:
“As one court recently observed in scrutinizing nuisance and trespass claims based on climate change, “it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades.” (pg. 42)
As these reports show, the growing trend of climate liability lawsuits perpetuated by financially-motivated plaintiffs’ lawyers is indicative of a shift in the power balance between municipalities and the states that ultimately govern their authority. Despite the minimal chance of success, it is necessary to mitigate future lawsuits to limit the potential of broad reaching consequences on the public. A favorable judgement in any of these cases stands will come at a cost to taxpayers and will have consequences that reach far beyond just those in the energy industry.