Energy legislation by litigation is a costly mistake

Energy legislation by litigation is a costly mistake
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If there is one lesson the left has learned well, it is that the federal courts are the place to go when the democratic process proves unsatisfactory. If Congress or the administration won’t adopt your policies, go to federal court and impose your way. But this legislation by litigation strategy is costly; it perverts the democratic process and turns our Constitution its head.

Enter the plaintiff bar’s latest darling: global warming lawsuits. Instead of debating the complex issues surrounding global warming in Congress, a number of coastal (read: liberal leaning) cities have resorted to the courts. No less than eight cities allege that five American energy companies should be held liable for creating a public nuisance — the “national and international phenomenon of global warming.”

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These lawsuits should be dismissed immediately. Critically, it’s the EPA — not the courts — that has been tasked with overseeing our national policy regarding greenhouse gas emissions. A unanimous Court recently made this clear in American Elec. Power Co. v. Connecticut.

Furthermore, these lawsuits fail nearly every element of a public nuisance tort:

First, production is not “unauthorized.” Rather, numerous federal and state statutes promote fossil fuel production. The California Public Utilities Code, for example, requires the Public Utilities Commission to “encourage, as a first priority, the increased production of gas in this state.”

Second, the defendant energy companies are not capable of “abating” the nuisance because the alleged harm occurs upon combustion. For similar reasons, the plaintiff cities cannot establish causation when billions of intervening third parties around the world make the decision to drive to work and heat their homes with fossil fuels. Ironically, the plaintiff cities are among the highest greenhouse gas emitters. Each year, San Francisco’s airport alone generates more than 10 million metric tons of emissions.

Additionally, public nuisance law makes clear that damages are available only for past harm. But the City of San Francisco recently wrote in a bond prospectus that it had not suffered harm from global warming and was “unable to predict whether sea level rise or other impact of climate change … will occur.” The cities nevertheless request a pot of money, a so-called “abatement fund” of billions of dollars they can spend on favored projects — and, of course, attorneys’ fees.

The plaintiff cities have also made much out of an alleged conspiracy by energy companies to engage in deceptive marketing. Plaintiffs claim that the “Defendants promoted massive use of fossil fuels by misleading the public about global warming by emphasizing the uncertainties of climate science and through the use of paid denialist groups and individuals.”

But in a twist of events, the federal judge hearing the cases found that it was the plaintiffs’ allegations that were misleading. When Judge William Alsup learned that plaintiffs’ “smoking gun” document was nothing more than an internal summary of a publicly available report, he rebuked plaintiffs’ attorney for being less than truthful.

Whatever one may think of global warming, it is clear that the federal courts are not the place for this debate. The democratic branches are better positioned to balance regulation with the interests of advancing and preserving economic, industrial, and social development. And they are in the best position to bring all of the players to the table including greenhouse gas-emitting giants like India and China — not just large American companies.

This developing story is about more than any particular issue, as important and complex as the issue of global warming may be. Legislation through litigation is costly, not just in terms of dollars, but more importantly, in terms of its perverse effects on our legal system. While the particular answer to a policy question might be debatable, there should be no debate over who gets to decide.

Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.