Cities File Exploitative Climate Suits: Courts Need to Stop Them
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.
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.