American courts cannot solve climate change — yet cities and states continue to try.

A few weeks ago, California became the latest government to file a lawsuit against major energy companies, joining New Jersey, Hoboken and more than two dozen other local and state governments around the country to file such suits. These lawsuits allege that companies that sell energy should pay billions of dollars for infrastructure upgrades, because energy is a contributor to climate change.

However, this money is not free. If these lawsuits are successful, companies will raise the price of energy for all of us.

In fact, environmental advocates and lawyers for local governments have actually stated that the goal of climate legislation is to raise the cost of energy. They believe forcing companies to raise the price of the energy they don’t like, such as from fossil fuels, will make it too expensive for people and businesses, thus decreasing the amount used.

However, this effort will harm American consumers and is not based in economic reality.

First, the elasticity of demand for gasoline is extremely low, meaning people cannot change purchasing behaviors and use less energy simply because the price goes up. Their cars, homes and businesses rely on these fuels, and they do not have the choice to avoid them. So, if these lawsuits cause energy companies to raise their prices, it will not lead to a reduction in fossil fuel use. It will just lead to higher prices. Families and businesses facing these economic pressures will skimp elsewhere.

Second, the persistent demand for energy cannot be satisfied with other fuels at a reasonable cost. There are no low-cost, renewable substitutes for the amount of energy society consumes. Despite companies diligently working to create more sustainable energy sources, the U.S. Energy Information Administration estimates that the United States’ reliance on petroleum will be about the same in 2050 as it is in 2023.

This means consumers will end up absorbing the cost of these lawsuits by paying higher energy bills. Prices have already been rising, given that inflation is up over 17% since 2021, and families and businesses can hardly afford to pay more when they are not going to see any value for these added costs.

Further, energy companies should not become the funders of local and state governments. The federal government has made billions of tax dollars available to local and state governments for climate adaptation projects, and communities can already spend money from their own budgets on clean energy. So they have other sources for the money they say they need.

In addition, climate change is a byproduct of today’s energy-intensive society. So while it may be true that climate change intensified Superstorm Sandy, as the city of Hoboken alleges in its lawsuit, that does not mean any individual energy producer can or should be assigned liability for that event. It would be akin to blaming one potato chip company for high obesity in the U.S.

Federal courts have recognized these basic legal and economic facts. In 2021, the 2nd U.S. Circuit Court of Appeals dismissed a case brought by New York City stating that even if the allegations were true, no single entity could be legally liable for global climate change. The court previously noted that “emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China.”

Instead of this climate litigation, lawmakers should focus on tangible solutions that can actually reduce carbon emissions. As I suggested in a piece for NorthJersey.com, The Record and the the USA TODAY Network, New Jersey can reach its goal of 100% clean energy by 2050 only if the governor and Legislature align their energy policies with economic realities. This involves supporting clean energy projects, from nuclear to wind investments. Our tax dollars can and should produce real climate dividends.

Sometimes, economics, science and facts differ from ideology. They do here. These ideologically driven climate lawsuits are not worth pursuing because they can harm people economically and produce no benefits to the fight against climate change. The elected leaders bringing these cases should reconsider them, and the courts should continue to dismiss litigation that has no factual or legal merit.

Danielle Zanzalari is an assistant professor of economics at Seton Hall University, a Garden State Initiative contributor and a Young Voices contributor. She researches bank regulation and personal finance.

This story was updated at 3:30 p.m. EDT.

The legal battle over whether cities, counties and states can hold fossil fuel companies financially accountable for heat waves, flooding and other effects of climate change is entering a critical new phase.

Since 2017, parties in the cases have squabbled over whether the lawsuits should be heard in federal or state courts. Now that federal appeals courts have agreed the cases belong before state judges — and the Supreme Court has so far declined to say otherwise — oil companies are pushing for the lawsuits to be scrapped altogether.

“This is really, ‘Does it belong in any court?’“ said Pat Parenteau, emeritus professor at Vermont Law and Graduate School. “That’s what the companies are counting on: a decision that the cases won’t be heard anywhere.”

Though previous court battles have centered on jurisdictional issues, the next phase will determine whether the cases are sufficient to proceed to discovery and trial, Parenteau said.

“It’s substantial,” he said, “and it’s potentially game-ending.”

During arguments in Delaware’s climate liability case last month and filings in two Maryland lawsuits in Annapolis and Anne Arundel County, industry attorneys have argued that a finding in favor of the local governments would require state judges to set energy policy far beyond their borders.

The challengers are “asking this court to regulate the nationwide — and even worldwide — marketing and distribution of lawful products on which billions of people beyond the state’s jurisdiction rely,” industry lawsuits told the Anne Arundel County Circuit Court in Maryland.

Allowing the claims to proceed, they continued, “would not only usurp the power of the legislative and executive branches [both federal and state] to set climate policy, but would do so retrospectively and far beyond the geographic boundaries of Maryland.”

The oil companies’ motions to dismiss the climate liability cases have already been rejected by one court in Hawaii and are under appeal.

Industry lawyers made similar claims in cases filed by the city and county of Honolulu, as well as Delaware and Hoboken, N.J. They are expected to soon lodge motions to dismiss in cases brought by Puerto Rico; New Jersey; and Charleston, S.C.

The municipalities are among more than two dozen local governments to file climate liability lawsuits since 2017. The cases accuse the oil industry of misleading the public about the dangers of burning fossil fuels, and they seek money to address the ravages of climate change.

If successful, the lawsuits could leave the oil industry on the hook for hundreds of billions of dollars.

California last month became the latest and largest state to file a climate liability suit, and observers said the Golden State’s participation could spur other governments to act.

Maryland at the forefront

Maryland has long been an epicenter for climate liability litigation.

The city of Baltimore’s lawsuit against BP and other companies went up to the Supreme Court in 2021, when the justices sided with industry in a narrow jurisdictional dispute. The justices have since declined to intervene again in the cases, allowing proceedings to begin in the state courts where the lawsuits were originally filed.

Annapolis and the coastal county of Anne Arundel each filed suit the same year the Supreme Court decided the Baltimore case. The lawsuits take aim at more than two dozen oil and gas companies — including BP and Exxon Mobil — as well as the American Petroleum Institute.

At the time Annapolis sued, Mayor Gavin Buckley said the case was a way to “hold the fossil fuel industry to account.” He said the lawsuit did not seek to solve climate change, but would help the low-lying city survive it.

In motions to dismiss the Maryland cases, attorneys for the oil and gas industries argue that state courts can’t regulate a global issue like climate change. They say the municipalities failed to raise a claim that can be decided by a state court.

“Maryland’s courts lack the authority to regulate lawful activity beyond the state’s borders,” said Theodore Boutrous, counsel for Chevron, which was named in the Annapolis and Anne Arundel lawsuits.

The companies argue that the federal Clean Air Act preempts the lawsuit. And although the lawsuits charge the companies with misleading consumers, the companies say they had “no duty to warn” when, they say, the “alleged impact of fossil fuel use on the global climate has been ‘open and obvious’ for decades.”

Industry attorneys point to steps taken by Maryland, including a 2009 law aimed at reducing greenhouse emissions. And they argue that even as the state addresses climate change, it promotes petroleum products and maintains a fund to oversee drilling and oil and gas well development.

In the Annapolis lawsuit, industry attorneys argue that local governments are seeking relief that would likely require a fund to compensate them. But they pointed to a court ruling in the case Juliana v. United States, which calls on the federal government to phase out fossil fuels, to argue that it is “beyond the power of the court” to devise such a plan.

The 9th U.S. Circuit Court of Appeals rejected the Juliana challenge in 2020, finding it raised questions better addressed by lawmakers than the courts.

The Anne Arundel complaint quotes from the 9th Circuit’s Juliana decision, arguing that administering a fund could include “determining what infrastructure projects — from sea walls, to transit, to levees — are supposedly necessary to prevent climate change-related harms.”

And it adds that, “given the complexity and long-lasting nature of global climate change, the court would be required to supervise the [fund] for many decades, if not forever.”

Where Big Oil does business

Industry lawyers are also raising “personal jurisdiction” claims, arguing that because most of the companies targeted in the Maryland climate liability cases are not incorporated or headquartered in the state, they cannot be tried before its courts.

Local governments are trying to hold the companies liable for injuries that stem “from the cumulative worldwide use of all oil, natural gas, coal, and other sources of emissions — the vast majority of which have no connection to defendants, much less to Maryland,” the attorneys argue.

But Victor Sher of the law firm Sher Edling LLP, which represents the Maryland governments and many others suing the oil industry, countered similar arguments in August before the Hawaii Supreme Court, telling the judges that state judges have jurisdiction because the companies have operations on the islands, including gas stations, storage facilities and refineries.

“Hawaii was big enough for them to invest in the market here, to promote and sell their fossil fuel products here,” Sher said.

Sher added that the Supreme Court earlier this year in the case National Pork Producers Council v. Ross rejected an effort to constrict application of a California animal welfare law in other states, suggesting it was the cost of doing business.

“If they don’t want to be hauled into court in Hawaii, they could choose not to do business here,” Sher said of the oil companies.

In addition to the companies’ motions to dismiss, Chevron has filed its own motion on the grounds that the Maryland lawsuits target corporate speech that is protected by the company’s first amendment rights — as well as a state law aimed at preventing so-called strategic lawsuits against public participation that can be wielded to silence critical speech.

The motion charges that the allegations “are especially meritless” because they do not identify statements that Chevron in particular made.

“The only statements plaintiff alleges Chevron made involve its support for renewable energy, which plaintiff calls ‘greenwashing,’“ the motion says.

A similar motion was dismissed by a Hawaii court last year and is now on appeal.

Climate change has many consequences. It can result in flooding, increased storms and droughts. And climate change also causes lawsuits.

Over the last few years, an increasing number of lawsuits have been brought, primarily against energy companies, seeking to make them pay because their products cause climate change. Some of these suits have been brought by states or localities, claiming that they will suffer damage due to the effects of a warmer world. Others have been brought as class actions.

The Supreme Court recently rejected attempts by some oil companies to have pending climate lawsuits moved from state to federal courts. The decision is considered a blow to the companies, as some state courts have a reputation for being more open to speculative liability theories and large damage awards than what is likely in the federal system.

We are already starting to see plaintiffs take advantage of this new opening. In June, Multnomah County, Oregon, filed suit against a wide variety of oil and coal companies, alleging that emissions from their companies’ activities exacerbated a 2021 heat wave that led to 69 deaths in the county.

But environmentalists shouldn’t be popping open their champagne bottles yet. These lawsuits still face perhaps insurmountable legal challenges. Whether they succeed or fail, they aren’t the right way of pursuing action on climate change.

Winning a climate lawsuit requires more than simply showing that fossil fuels emit greenhouse gasses that warm the planet. There are a variety of procedural and substantive challenges that such suits must overcome. For example, most states contain a statute of limitations that prevents plaintiffs from recovering for harm due to actions in the distant past. Yet, in the case of climate change, the bulk of the energy company emissions and conduct at issue occurred many decades ago, far beyond the statute of limitations period.

Climate suits also face tough substantive problems. For example, the Oregon lawsuit involves a long chain of causation between emissions that occurred many decades ago and a particular heat wave. Establishing a proper connection between those two events sufficient for legal liability is no easy task.

Or consider another example. An increasing trend is for suits to rely on the “public nuisance doctrine,” an old common law doctrine that allows governments to sue for actions that infringe on public rights rather than cause harm to them or specific parties. As with many common law claims, the public nuisance doctrine was developed before the institution of the modern regulatory state. Today, by contrast, almost every area of the economy and the environment is governed by elaborate statutory and regulatory frameworks, including the development and use of fossil fuels. For a court to invoke the public nuisance doctrine concerning greenhouse gas emissions would undermine these frameworks, and judges may be rightly wary of usurping the prerogatives of the other branches of government in this way.

Unsurprisingly, climate lawsuits have not had a good court track record. In 2011, the Supreme Court, in an 8-0 opinion delivered by Justice Ruth Bader Ginsburg, held that manufacturers and energy companies could not be sued for greenhouse gas emissions under federal law. In 2021, the U.S. Court of Appeals dismissed one of the recent cases, saying there is no legal or factual foundation for them.

Climate activists haven’t given up, of course. But even if some climate-related lawsuits could overcome every legal hurdle, it would still be worth asking whether litigation is the best way to deal with the risks and costs of climate change. Understandably, some would be frustrated by what they see as the slow pace of governmental action on climate and would seek to use the courts as an end-run around the political system. But that doesn’t make it right.

The reality is litigation is a poor vehicle for dealing with the complexities of climate change. Lawsuits can work to settle disputes between a discrete set of parties. But in the case of climate change, everyone emits and benefits from the emission of greenhouse gasses, and we all are harmed by the effects of climate change in various ways. Litigation is unable to make the trade-offs and compromises necessary to deal with the issue. Doing that requires the messy business of politics.

Josiah Neeley is a Senior Energy Fellow and Texas Director at the R Street Institute. He wrote this for InsideSources.com.

These lawyers have won big against asbestos and opioid manufacturers. Now, they’re coming for oil and gas companies.

In the past nine months, four law firms that specialize in corporate wrongdoing have filed lawsuits against oil and gas majors on behalf of local governments seeking compensation for the ravages of climate change. The filings signal that climate liability litigation — once mostly the domain of environmental firms and government attorneys — is drawing attention and resources from new corners of the legal industry.

“Climate litigation is increasingly seen as a commercially viable practice as legal pathways clear and the evidentiary base continues to grow,” said Benjamin Franta, a senior research fellow and founding head of the Climate Litigation Lab at the University of Oxford.

Franta added that U.S. climate liability challenges — which date back to 2018, when three Colorado communities sued oil companies to pay up for the impacts of a warming planet — “may be approaching a tipping point as commercial firms with significant resources enter the field.”

Climate liability lawsuits recently received another significant boost, after the Supreme Court in April rejected the oil industry’s attempt to derail the roughly two dozen cases that have been filed across the country.

Previously, with a few exceptions, climate liability lawsuits have been mostly handled by the California-based law firm Sher Edling LLP, nonprofit environmental groups and attorneys general offices in mostly Democratic cities and states.

But one of the latest suits was filed by California-based Worthington & Caron PC, which has specialized in asbestos cancer cases. Texas- and Oregon-based personal injury firms Simon Greenstone Panatier PC and Thomas, Coon, Newton & Frost have also joined the fray.

All three represent Oregon’s Multnomah County, which last month became the latest municipality to file a climate liability lawsuit, blaming a deadly 2021 heat wave in part on the fossil fuel industry. The law firms’ fees will be contingent upon the outcome of the case.

All together, climate liability suits nationwide have the potential to put the fossil fuel industry on the hook for hundreds of billions of dollars — if the cases are successful.

Simon Greenstone Panatier founding shareholder Jeffrey Simon distinguished the Oregon lawsuit from other climate liability cases.

Multnomah County’s lawsuit, he said, is different because it focuses on a specific “unnatural weather event” rather than global warming generally. Portland’s heat wave, he said, was entirely anomalous.

“We have always had hurricanes, even before the Industrial Age,” Simon said. “What we didn’t have is 116 degrees in Portland, Ore.”

Simon said the firms were preparing the Oregon case well before the Supreme Court declined to take up the oil industry’s bid to quash the climate liability lawsuits. And he questioned whether the high court’s decision — which cleared the way for the cases to proceed in state court, against oil companies’ wishes — would prompt involvement from more lawyers outside of the environmental realm.

“The plaintiffs’ bar should be circumspect about that,” he said, adding that “not all harmful weather events can be directly linked to anthropogenic climate change, although many can.”

But Pat Parenteau, emeritus professor at Vermont Law and Graduate School, said the Supreme Court’s move — which could accelerate how quickly the climate liability cases get to trial — could eventually pique the interest of law firms that traditionally focus on toxic torts and corporate malfeasance.

He noted the lawsuits are “incredibly expensive to litigate” but that large firms can finance them with prior settlements.

“They are willing to take risks,” Parenteau said, “but only when they see a decent chance of winning with a big upside on damages — as in high seven figures.”

From opioids to oil

Simon said he got involved in Oregon’s climate case when a fellow attorney who had fought the asbestos industry in cancer cases told him that Multnomah County officials were looking for legal representation.

Around that time, Simon was securing a $1.9 billion opioid settlement with Johnson & Johnson and other pharmaceutical companies in Texas. After months of researching the Oregon heat dome that killed 69 people, he was convinced: “There is a very straightforward cause of action here.”

He said Portland has had a traditionally mild climate “and simply didn’t have the infrastructure and emergency response systems for that kind of heat catastrophe.”

The suit charges that the heat was a “direct and foreseeable consequence” of the oil and gas industry’s decision to sell as much fossil fuels as it could while misleading the public about the effects of burning them.

Simon called it a “classic tort, the intentional creation of a public nuisance, clear negligence and a very compelling case for fraud.”

Like Oregon heat wave case, the most recent climate liability lawsuits are tied to particular events.

More than a dozen municipalities in Puerto Rico sued the oil industry in November, seeking compensation for the 2017 hurricane season that killed thousands and left much of the island without power for nearly a year. The local governments are represented by class action consumer protection law firm Milberg Coleman Bryson Phillips Grossman LLC.

Milberg partner Marc Grossman said at the time of the lawsuit that its lawyers were “investigating claims by municipalities all over the world.” The firm did not return requests for comment.

New Jersey filed its own lawsuit against the oil industry last October, invoking the 10th anniversary of Superstorm Sandy, which killed 38 and left more than 300,000 homes damaged. State Attorney General Matthew Platkin (D) filed the case, with Sher Edling as special counsel.

The oil industry has denounced the climate liability lawsuits as a waste of money and a distraction from efforts to address rising global temperatures. Companies have sought for years to move the cases from state to federal court, where they believe they are more likely to prevail, arguing that emissions are already regulated under the federal Clean Air Act and cannot be subject to state-based claims.

Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, which opposes the lawsuits, didn’t address the involvement of new law firms in climate litigation.

But he said the group shares “the communities’ goal of making a meaningful difference in climate change.” However, the solution is “to innovate new ways to source and use energy that reduce emissions, not create ways to file lawsuits that would divert a significant amount of the American people’s resources to plaintiffs’ lawyers,” he said.

He said Supreme Court precedent indicates that the cases raise national issues that belong before Congress and EPA, not the courts.

“That remains true today,” he said, “and we are confident that once the courts assess the cases for themselves, they will see that addressing climate change is not about assigning state liability but facilitating national innovation.”

Multnomah County is seeking nearly $52 billion in damages and future costs for climate adaptation in a lawsuit that filed Thursday against more than a dozen fossil fuel companies to hold them accountable for the unprecedented heat dome event in 2021.

Lawyers for the county are moving forward with a lawsuit against 17 oil and gas companies alleging that the burning of their fossil fuel products, which leads to greenhouse gas emissions that are warming the planet, was a substantial contributor to a heat dome event roughly two years ago. Ninety-six people died across Oregon as a result of the heat dome, with the majority living in Multnomah County.

The lawsuit claims the fossil fuel companies “rapaciously sell fossil fuel products and deceptively promote them as harmless to the environment,” leading to disasters like the heat dome.

During Thursday’s board meeting, commissioners voted unanimously to declare climate change a public nuisance, clearing the way for the attorneys to file a lawsuit against the fossil fuel companies. Those include Shell, Chevron, BP and ExxonMobil — the United States’ largest oil and gas producing company, whichpredicted global warming as early as 1977 and also knew the dangers of burning fossil fuels, according to a 2016 Pulitzer finalist investigation by Inside Climate News.

Multnomah County chair Jessica Vega Pederson said the lawsuit is about accountability and fairness, something she said residents of the county deserve.

“These businesses knew their products were unsafe and harmful, and they lied about it,” Vega Pederson said in a written statement. “They have profited massively from their lies and left the rest of us to suffer the consequences and pay for the damages.”

OPB has reached out for comment to the oil and gas companies named in the lawsuit, but most did not immediately respond.

In a written statement, ExxonMobil said the lawsuit did “nothing to address climate change.”

“Suits like these continue to waste time,” the company wrote. “This action has no impact on our intention to invest billions of dollars to leading the way in a thoughtful energy transition that takes the world to net zero carbon emissions.”

Similarly, an attorney for Chevron called the lawsuit unconstitutional and a “counterproductive distraction.”

The county is seeking $50 million in actual damages for the 2021 heat dome, $1.5 billion in future damages and $50 billion to better prepare for the changing climate. The county said it wants to conduct studies, upgrade public infrastructure and health care services, and safeguard residents from extreme weather events.

The deadly heat dome event, which trapped hot air that scorched the region for nearly a week during the summer of 2021, broke records across the state as temperatures in Portland ticked as high as 116 Fahrenheit. Most people who died were found alone in their homes with no air-conditioning units. According to a report published by the county, there were a total of 72 heat-related deaths in 2021, 69 of which happened during the heat dome event. In a typical year, there are zero heat-related deaths.

Researchers and scientists said the heat wave was virtually impossible without human-caused climate change, while other research found it was a freak event that should only happen once in 10,000 years, but was made hotter because of climate change. In its lawsuit, the county speculates that similar heat events could happen as frequently as every five or 10 years because of climate change.

Multnomah County is joining a growing list of more than two dozen other cities and counties across the nation that have filed similar lawsuits attempting to hold fossil fuel companies accountable for continuing to market products that science shows are driving human-caused climate change.

Multnomah County is represented by three law firms outside of their legal counsel.

“What is new about this case is how the leadership of Multnomah County is utilizing irrefutable climate science to hold corporate polluters accountable for their role in causing a discreet and disastrous event, as well as recent wildfires,” said attorney Roger Worthington.

He said he’s confident that once they show the jury what fossil fuel companies knew about climate change and their alleged failure to act, “the jury will not let the fossil fuel companies get away with their reckless misconduct.”

County legal counsel on Thursday said its outside attorneys will not charge fees for the case unless the county wins, and it could take between five and 10 years for the lawsuit to work its way through the legal system.

This story may be updated.

‘You’re talking about a judge who clearly has a bias,’ energy policy expert tells Fox News Digital

The Hawaii state judge presiding over a high-stakes climate change casebetween the City of Honolulu and several multinational oil corporations is facing calls for recusal over his indirect relationship to plaintiffs.

Mark Recktenwald, the chief justice of the Hawaii State Supreme Court, quietly disclosed this month that he presented for an April course in collaboration with the Environmental Law Institute (ELI) Climate Judiciary Project. According to the ELI, the project is designed to educate judges across the country on how to handle climate change litigation that comes before them.

“With growing public concern about climate change and stasis on the issue in Congress, groups pressing for climate action are seeking a way forward through the courts,” the group states on its website. “As the body of climate litigation grows, judges must consider complex scientific and legal questions, many of which are developing rapidly.”

“Our shared vision is to make available to federal, state, and local judges the basic science they need to adjudicate the climate litigation over which they preside.”

The ELI, though, boasts numerous connections to Sher Edling, the eco law firm representing Honolulu and a number of other jurisdictions, including Minnesota, New Jersey, New York City, and San Francisco, in similar climate nuisance cases against oil corporations in which plaintiffs argue the fossil fuel industry has spearheaded a decades-long campaign of deception about global warming risks.

Sher Edling — founded in 2017 specifically to represent “states, cities, public agencies, and businesses in high-impact, high-value environmental cases,” according to its website — has also received funding from left-wing organizations like the MacArthur Foundation and William and Flora Hewlett Foundation which have both funded ELI.

“A grant to the Environmental Law Institute will support the Climate Judiciary Project, which was launched in 2019,” the MacArthur Foundation explains as the rationale for a $500,000 contribution to the ELI in 2020.

“The goal of the project is to increase judges’ understanding of the objective facts of climate science as it is understood by the expert scientific community, and how the lack of information would result in serious consequences for human and natural systems,” it continues. “This will lead to better-informed decisions and ultimately build a body of law supporting climate action.”

The organization has also given at least $350,000 to the Collective Action Fund, a fund established to support climate litigation and which has wired millions of dollars to Sher Edling. The William and Flora Hewlett Foundation has given at least $260,000 to ELI and $3 million to the Collective Action Fund.

In addition to sharing some funding streams, ELI and Sher Edling have also hired the same personnel.

For example, Ann Carlson, President Biden’s pick to lead the National Highway Traffic Safety Administration (NHTSA), served on ELI’s board of directors for years while also “providing pro bono consulting” for Sher Edling on litigation against oil companies, financial disclosures showed.

“The judge in Hawaii clearly has a conflict of interest and needs to recuse himself from the case,” Kathleen Sgamma, the president of fossil fuel industry group Western Energy Alliance, told Fox News Digital. “It reveals the corrupt web that Ann Carlson, Biden’s nominee to lead NHTSA, weaves.”

“She raised money to fund these climate change lawsuits, recruited cities like Honolulu to bring these cases, and even helped train the judge who’s hearing this case,” Sgamma said. “They’ve woven such a tangled web that there’s no ‘integrity’ in the process at all. It’s a climate change racket where the plaintiff and judge are working together to advance an agenda through the courts.”

Sher Edling counsel Michael Burger has also participated in multiple ELI events and former Sher Edling lawyer Meredith Wilensky was previously an ELI Public Interest Law Fellow, according to the Daily Caller which first reported the ties between ELI and Sher Edling.

Additionally, ELI Climate Judiciary Project curriculum advisers and event presenters include officials from the Sabin Center for Climate Change Law, such as its director Michael Gerrard and associate director Jessica Wentz, which has filed amicus briefs and reports arguing in favor of the climate nuisance cases.

Robin Craig, a University of Southern California professor and leading ELI curriculum contributor, said last year that during the institute’s training sessions, “judges can ask questions and discuss topics openly without maintaining the neutrality required in court.”

The Hawaii case, in which Sher Edling is suing Sunoco, ExxonMobil, Shell Oil, Chevron and other petroleum companies on behalf of Honolulu and its surrounding county, landed before Recktenwald in March after defendants appealed a lower court ruling rejecting a motion to dismiss the lawsuit altogether and allowing the case to proceed to trial. The case is the farthest-along climate nuisance across the country.

And, in another setback for oil industry defendants, the U.S. Supreme Court rejected a request to allow such climate nuisance cases to be heard in federal court. The decision gives Recktenwald a potentially major role in the most advanced first-of-its-kind climate change lawsuit nationwide.

“This shows the level of sophistication, the level of funding and the relationships — the cozy relationships that exist in this crowd,” Tom Pyle, the president of the Institute for Energy Research, told Fox News Digital in an interview. “You’re talking about a judge who clearly has a bias. It shows one of the reasons why these cases probably should have been kicked up to the federal level.”

“This judge should not have any involvement in this case whatsoever just on the information that’s publicly available,” Pyle continued. “If this judge had a history or a relationship with a conservative organization like the Federalist Society or something similar, then the left would be going apoplectic about this. And yet nobody really bats an eye.”

In his disclosure earlier this month, Recktenwald publicly shared the slide deck for his ELI presentation titled “Rising Seas and Litigation: What Judges Need to Know About Warming-Driven Sea Level Rise.” The chief justice spoke about a number of ongoing climate nuisance suits and discussed arguments plaintiffs have made in court, the slide deck showed.

He additionally stated he will present in June about climate litigation in his leadership role with the Conferences of Chief Justices and Chief Court Administrators. The presentation is titled “Environment, Energy and Natural Resource Disputes: The Use of Special Masters in Resolving Complex Litigation.”

The chief justice gave parties until Friday to file objections to his involvement in the case in light of his disclosures.

Recktenwald’s disclosure notably failed to mention that he also presented at a December ELI webinar titled “Hurricanes in a Changing Climate and Related Litigation.”

“Green groups have tried, and in many areas succeeded, at owning the courts knowing it is the only way to implement their agenda,” Daniel Turner, the founder and executive director of Power the Future, told Fox News Digital.

“But you’d expect a level of impartiality and integrity in the judges in their myriad lawsuits,” Turner continued. “If the oil and gas industry held fancy conferences for judges we’d be excoriated in the press. If judges can be bought, then our legal system is in the hand of foreign funders just like these green groups are.”

The ELI, Sher Edling and Recktenwald didn’t immediately respond to requests for comment.

Climate activists and lawyers are teaming up with big-city politicos to hijack national energy policy. These forces are exploiting a radically misplaced legal theory to make climate change policy in the courts while landing big cash payouts.

The misapplied legal theory is called nuisance—both public and private nuisance. Over two dozen cities, counties, and states have filed nuisance claims against energy companies seeking sky-high payoffs for damages allegedly wrought by climate change. The politicians behind these claims plan to use any damage awards for green New Deal-style spending.

Traditionally, nuisance claims have been a responsible means for solving local problems that do not involve a physical intrusion, such as a persistent late-night noise in a neighborhood or long-term neglect of a building. Of late, fee- and ideology-driven lawyers and local politicians have weaponized nuisance lawsuits in pursuit of their policy goals and a cash windfall to fund their political agendas.

High-profile, high-dollar nuisance litigation has been underway for years. For example, municipalities ravaged by the opioid crisis recently landed billions in payouts from pharmacy chains like CVS and Walgreens. Those suits alleged that the companies facilitated addiction by filling illegitimate prescriptions.

The pharmacies were a peculiar target. The Drug Enforcement Administration that sets production quotas for opioids. And by defining pain as simply a treatable medical condition, the government encouraged physicians to prescribe opioids to avoid malpractice lawsuits. The pharmacies weren’t the ones pushing the opioids.

Were these suits a sincere effort to stem the tide of opioid abuse and reduce crime? Can local nuisance laws and lawsuits effectively address such broad and sweeping cross-border problems as opioid sales and addiction? That hardly seems the case in either instance. But the opioid cases helped to normalize nuisance as a tool for purported national problem-solving—and raising revenue.

The complaints in the climate nuisance cases betray that revenue raising is a significant purpose. See, for example, the relief requested in the Boulder, Colo. nuisance suit against Suncor and ExxonMobil. City officials want an untold sum of money to “green fit” buildings, replace bridges and roads, and fund ideologically charged public education programs about climate. It’s the green New Deal sought by litigation rather than legislation.

A sound climate policy would apply expert, balanced data and policy toward a bipartisan solution for dealing with any problems. Further, any solution, if one is needed, cannot be implemented piecemeal. Carbon dioxide crosses state lines and national borders. Moreover, the entire US accounts for only about 14% of annual world CO2 emissions, which is less than half of China’s annual emissions. It makes no sense for cities and other local entities to go after oil and gas companies who provide energy essential to our modern economy and standard of living even as China builds coal plants apace.

Activist lawyers and city officials are leveraging nuisance in pursuit of other goals as well.

In California, for example trial lawyers representing Earth Island Institute targeted Coca-Cola with a 2020 public nuisance lawsuit over its alleged misuse use of plastic drink bottles. The case was ultimately decided in the beverage giant’s favor in late 2022.

Trial lawyers have also teamed up with municipal governments in pending nuisance lawsuits that allege that some automakers are manufacturing cars that are too easy to steal, and are therefore contributing to higher crime rates.

Unfortunately, the US Supreme Court recently declined the opportunity to end this expensive and destructive practice and determine whether the climate nuisance suit the City of Boulder filed against Suncor and Exxon is appropriate for a state court.

That case, and other similar cases, pose central jurisdictional and policy questions: Do such disputes belong in state courts or federal courts, or in court at all as opposed to action by the Congress or a regulatory agency such as the EPA?

The answer to this question is critical to the trajectory of almost two dozen climate nuisance suits. Boulder and other like-minded jurisdictions anticipate state courts will be friendly venues for their claims. The federal courts have almost uniformly rejected efforts to set climate and energy policy by nuisance lawsuits.

In light of the high court’s failure at this juncture to forestall this manipulation of law and the abuse of our nation’s judicial system, one can expect our courts to be swamped with countless unfounded claims, inconsistent rulings and damage awards handed down by different courts, and years of appeals and counter-lawsuits.

Dozens if not hundreds more localities can be expected to follow the lead of places like Boulder and Baltimore, particularly cities struggling with a shrinking tax base. Though profitable for lawyers and consultants, this result is hardly in the public interest.

No court is a proper venue for addressing such sweeping and complex issues. The climate-nuisance suits fundamentally reflect a lack of faith in the democratic process to solve any challenges climate change may pose.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

John R. Hays Jr. is a longtime energy lawyer in Austin, Texas, and adjunct professor of energy law and policy at the University of Texas School of Law.

WASHINGTON (Legal Newsline) – Oil companies facing climate change lawsuits won’t have the U.S. Supreme Court’s support on a key issue.

SCOTUS on April 24 declined to review appeals in several cases, leaving in place orders that allowed cities and counties, represented by private lawyers working on contingency fees, to pursue their litigation in state courts.

The government officials and private lawyers prefer state courts and fought to have their cases heard there after defendants like Exxon and Chevron removed them to federal court. The oil industry figured to be able to mount stronger defenses in federal court.

The oil companies argue the federal government explicitly encourages oil and gas development as national policy and the governments suing them are some of the biggest users of fossil fuels, with large fleets of automobiles, trucks and buses.

But the lawsuits make state law public nuisance claims, federal courts have ruled in remanding the cases to state court. Only Justice Brett Kavanaugh voted to hear the appeals. Justice Sam Alito didn’t participate.

“The Supreme Court’s decision to not hear the federal law issues in this case is certainly disappointing because it risks the creation of a patchwork of state court approaches to important public policy matters that are inherently federal and global in nature,” said Phil Goldberg, special counsel to the Manufacturers Accountability Project.

“But today’s events do not undermine the fact that, even under state law, selling Americans the energy they need and use every day is not a liability inducing event. When courts get to the substance of these claims—just like in New York City’s case that was dismissed in 2021—it will be evident that this litigation has no legal or factual foundation. The challenge of our time is developing technologies and public policies so that the world can produce and use energy in ways that are affordable for people and sustainable for the planet. It should not be figuring out how to creatively plead lawsuits that seek to monetize climate change and provide no solutions.”

The Supreme Court’s order might come as a surprise to the companies figuring they’d be able to make their arguments before the nation’s highest court. In the District of Columbia’s suit, they recently asked for a stay of the remand order until SCOTUS had a chance to weigh in.

The Supreme Court’s order addressed cases brought by Boulder, Colo., Baltimore, San Mateo County in California, Honolulu and the State of Rhode Island. Many public officials have teamed with private lawyers at Sher Edling to bring the lawsuits, which allege the defendants caused the “public nuisance” of climate change and seek to hold them accountable for costs cities, counties and states will incur to handle it.

In 2011, the U.S. Supreme Court rejected a case filed by the State of Connecticut against American Electric Power Co., ruling that state courts are not the proper venue for cases involving damages for climate change, rather that Congress and the Environmental Protection Agency (EPA) are more appropriate forums for those questions.

The companies also argued that having state courts decide issues of climate change fragments the process in a piecemeal way heeding their own state interests and narrow fact gathering, rather than a broad overall cohesive federal approach. They also contend the litigation is geared toward making gas and oil so expensive consumers will reduce their consumption.

Climate-change plaintiffs suffered early defeats when federal appeals courts in California and New York rejected their lawsuits as raising unjusticeable political questions.

They retooled their strategy in part to navigate around those decisions and in part to maintain their lawsuits in state courts, where they can reasonably expect to achieve better results, especially against out-of-state corporations they are asking to pay billions of dollars that would flow to local infrastructure projects.