Alexis de Tocqueville famously observed that “there is hardly any political question in the United States that sooner or later does not turn into a judicial question.” That certainly seems to be the case with climate change. This month the city of Boulder, Colorado, along with Boulder County and San Miguel County, filed suit against two major oil companies, seeking to recover their costs related to global warming.
The Boulder case is the latest in a series of cases where plaintiffs have sought relief from climate change in the courts. Several coastal cities have pending litigation that seeks to recover damages for sea level rise caused by global warming. The Boulder case, however, is the first time a non-coastal locality has brought this type of action. And the case is just the tip of the (melting) iceberg when it comes to climate damage litigation. In Oregon, a lawsuit brought on behalf of children — based on the effect climate change will have on them — is also headed for trial after a federal appellate court rejected attempts by the Trump administration to block the suit.
These cases present a novel legal issue with far-reaching implications. The law has long recognized that where actions by one party interfere with the person or property of another, that person may be able to recover damages or even get a court order to enjoin, or put a stop to, the behavior. If I open a stinky pig sty that drives away business from a neighboring beauty parlor, I may have to compensate them for their losses. Scientific evidence suggests that global warming caused by greenhouse gas emissions may similarly harm property owners through flooding, drought or other climatic changes.
We sympathize with these plaintiffs, as it is hard to understand why they should bear the costs of global warming while major greenhouse gas-emitters reap the profits. Yet litigation to recover damages is a poor method of dealing with this difficult problem. In fact, these cases seem to be rooted more out of desperation rather than a strategy to achieve ideal policy.
Even in ideal circumstances, lawsuits are a costly and time-consuming business. In addition, climate change is the result of actions of millions of emitters and could potentially harm billions of individuals and communities. The legal nightmare that would result from trying to resolve these issues in court is almost beyond comprehension. It is also not clear if those most in need of help would benefit from such a system, give that it’s very likely that poorer areas will be hit hardest by global warming and may also lack the resources to bring a large-scale legal action like that brought by the city of Boulder.
However, there is a simpler and more effective way to deal with this problem. For a long time, economists have advocated for pollution pricing as a mechanism to make polluters pay for the costs they impose on third parties. A fee ensures that polluters only do so to the extent that the benefits of emissions (in the form of gasoline for our cars and light from coal-burning power plants) exceed the harm caused to others (from rising sea levels or more powerful storms).
Applied to climate change, this would mean a fee on carbon emissions. The benefit of such an approach is that revenues from the fee could be used to offset more burdensome existing taxes, boost economic growth and invest in jobs. Additionally, if the carbon price imposed was high enough, it could pre-empt suits like the one in Boulder.
Climate damage lawsuits are a sign that this issue will persist. The question now is whether we will deal with climate change in a logical, economically-efficient way or in a haphazard, costly one.
Josiah Neeley is director of energy policy and William Murray is federal energy manager for the R Street Institute, a nonprofit group advocating for limited government.