Cities and counties suing energy producers for climate change are not “sophisticated litigants” and risk losing a substantial amount of any potential payouts to their attorneys’ fees, Ohio Attorney General Dave Yost said earlier this month. The attorney general’s comments raise key questions and concerns about the municipalities’ motivations and the effectiveness of their actions.

In a discussion hosted by the Federalist Society, titled “Consequences of Municipal Litigation,” Attorney General Yost and Tennessee Deputy Attorney General Jonathan Thomas Skrmetti explained the flaws that characterize the ongoing climate change lawsuits targeting energy companies. Both agreed the cities and counties filing these lawsuits are stretching tort law beyond its reasonable limits, making these cases highly novel and ultimately unlikely to be successful.

Flaws of the State Court

Attorney General Yost and Deputy Attorney General Skrmetti spoke to the greater legal doctrine behind municipal public nuisance claims during this event. The laws being cited by the cities and counties bringing this litigation risk altering national and foreign policy. It is for this reason that Judge Andrew D. Hurwitz left the matter to the legislative branch of government as he threw out the Juliana v. United States climate case, stating that the case and the relief sought was beyond the courts’ constitutional power.

Likewise, in the climate change public nuisance cases that have been filed by municipalities since 2017 (a dozen-plus cases and counting), the plaintiffs are suing on behalf of localized impacts of a global phenomenon. On matters of global scope, Yost said, it is only the federal government that represents the people as the arbiter of interstate and international relations:

“It is certainly true that local governments have every right to be able to abate nuisances of a local nature. But issues like climate change are not a local nuisance. Without getting into the merits of the debate, but whatever those debates are, they are the same across Ohio. They are not different in Cleveland vs. the suburbs of Lakeland.” (emphasis added)

Put simply, Yost argues, state courts do not have standing to judge an issue of this magnitude. Yet, cities, municipalities and even some states are urging their courts to pursue litigation, regardless of this fact.

This attempt to fill the role of the federal courts is much to the detriment of their citizens. Municipalities lack the resources to pursue lawsuits against large industries and these municipalities are often preyed upon by private lawyers offering assistance, contingent on a large payout, if successful. Deputy Attorney General Skrmetti has seen this play out on a local level firsthand:

“Counties and cities are not engaged in large scale national litigation on a regular basis. And again, this is not pejorative, but they are just not sophisticated litigants. So, when a lawyer comes in and says ‘we can get you free money, we just need a contingency…,’ it’s hard to say no to free money.”

The lawyers making these pitches to assist cases of this scale are viewing it from a business development perspective and not out of a desire to alleviate the problem of climate change. Their goal is to get as much money as possible, as fast as possible, and heighten their reputation in the process. This is much to the disservice of the average citizen, who is now receiving less of any potential settlement or award due to both the presence of outside counsel, a small purse, and a lawsuit negotiated out of haste.

Lessons From the Tobacco Settlement

In addition to losing a substantial portion of any winnings to their lawyers, the municipalities pursuing this litigation face another substantial risk: mismanagement of their remaining funds.

While the lawyers pushing these climate lawsuits like to compare the municipal public nuisance cases targeting energy companies to those that targeted tobacco companies in the 1990s (an absurd apples-and-Snickers bars comparison), the only precedent drawn from their comparison is that state and local leaders are sometimes irresponsible managers of settlement funds that are extremely large in scale.

Despite receiving $470 million dollars in 2015-2016, forty states and the District of Columbia – accounting for 80 percent of states in the tobacco master settlement agreement – failed to spend more than half of what the Centers for Disease Control and Prevention (CDC) recommended to spend on tobacco prevention programs.

Rather, the money negotiated in the settlement against tobacco companies and intended for public health programs, went to fill budget gaps due to fiscally irresponsible lawmakers who didn’t want to raise taxes to fulfill campaign promises. In 2015-2016, only 2 cents of every dollar that states received from their settlement with tobacco companies went to smoking cessation classes and public health programs for those affected with tobacco related illnesses.

It’s unreasonable to expect public officials to behave differently if they were to win a settlement in the climate cases. If history is any indication, their money would be squandered, their constituents would not benefit, and they would have failed to make any progress towards addressing climate change beyond scoring cheap political points.

Conclusion

The courts cannot offer the relief that citizens nor states need in order to combat climate change. If this global issue continues to be litigated through our judicial system, citizens will be shortchanged by trial lawyers seeking a large payout and see minimal, if any, improvements from any potential settlement, as their elected and un-elected officials may mishandle those funds.

The decision is best left to the legislative and executive branches of government. As Deputy Attorney General Skrmetti stated:

“The lack of political accountability is also really significant here because a lot of these cases have policy implications above and beyond the pure damages…They tend not to be answerable to clients in nearly the same way. Their decision-making is not subject to the same type of scrutiny. And so you have policy decisions that are being made by people who have not been put into a position to make policy decisions by the sovereign citizens of the state.”