Climate Change: A Plea For Legislation, Not Litigation

By: Richard W. Weekley

For many personal injury trial lawyers, the dream is to one day hit the next big litigation jackpot and land a multi-billion-dollar settlement, deploying lawsuits against one American industry after another in a scheme to strike it big. Now, some attorneys believe they’ve uncovered the City of Gold and are ready to cash in on climate change.

They’ve partnered with mayors, environmental activists and states’ attorneys general to wage a legally dubious crusade against our nation’s oil and gas producers — all on contingency fee contracts for the lawyers, of course.

The legal system has been weaponized for a full-scale attack on a critical player in America’s economy. But this public policy debate is better suited for the halls of Congress and our state capitols, not the halls of justice.

As advocates for eradicating abuse from the legal system and restoring civil litigation to its appropriate role, these lawsuits are alarming to us because they stretch the law far beyond its intentions, ignore critical facts and involve private lawyers in a space meant for democratically elected decision makers.

In the cases filed so far, the plaintiffs allege that a select few American oil and gas companies are single-handedly responsible for causing worldwide climate change and seek to hold them accountable for current and future climate-related damage.

But it is not clear how a court could quantify the possible role of these oil and gas companies in contributing to climate change. How can anyone say with reasonable certainty what impact a single producer allegedly had and will have on our environment?

Using the same logic, shouldn’t everyone be held responsible for their share of climate-wrecking energy consumption? Families and farmers, truckers, manufacturers, businesses of all sizes, airlines — all demand cheap energy to fuel their activities.

And the lawsuits make no mention of massive energy consuming nations, like China, which emit vast amounts of pollution into the atmosphere. Even the cities and counties themselves that have brought the lawsuits emit pollution into the atmosphere every day through municipal services like garbage collection or the police and fire departments. Where exactly do they factor into all of this?

Further, how do you quantify and assign responsibility for damages that are yet to occur, and might never occur? Speculation about the size, cost and cause of a natural disaster or weather event that may (or may not) happen five, 50 or 500 years from now is like incarcerating someone today because they might commit a crime next year. This would create a dangerous legal precedent.

What is clear, however, is that the pot of gold continues to be too tantalizing for some trial lawyers — and revenue-seeking government entities acting as plaintiffs — to resist.

Legislation Needed, Not Litigation

Legislation — not lawsuits — is a more effective avenue to address an issue this complex. Not least of all because with little oversight of private lawyers and no strings attached to the dollars recovered in these climate change cases, there is no rational reason to believe a legal settlement would have any meaningful impact on our nation’s environmental challenges.

Our legal system is not the correct forum for crafting public policy, and our courts were never intended to bypass the legislative process in pursuit of anyone’s personal agenda. Twelve citizens on a jury should never stand in for 535 elected members of Congress or our 50 state legislatures.

Climate change is an intricate issue that requires serious discussion and public deliberation. But enterprising trial attorneys will do us all a tremendous disservice if they succeed in forcing the outcome of these complex considerations through litigation.

That is simply not the role of judges, juries, lawyers and courts in America. We have elected representatives and the legislative process for a reason.

Our global climate, our nation’s energy security, economy and countless American jobs are far too crucial to leave in the hands of a few unelected plaintiff lawyers as they chase after the next big payout. Policy discussions need to happen in the statehouse, not the courthouse.

Signed:

• Richard W. Weekley, senior chairman, Texans for Lawsuit Reform.
• Thomas B. Stebbins, executive director, Lawsuit Reform Alliance of New York.
• John Doherty, president/CEO, Civil Justice Association of California.
• Melissa Landry, executive director, Louisiana Lawsuit Abuse Watch.
• William W. Large, president, Florida Justice Reform Institute.