Cooperation, not lawsuits, right way forward for Florida on climate

By: Robert McClure

Late last year, a group of crab fishermen on the West Coast filed what is simply the latest in a series of lawsuits orchestrated by trial attorneys that target fossil fuel companies. The Pacific Coast Federation of Fishermen’s Association believes thirty energy manufacturers should be held responsible for delayed crabbing seasons and climate-related economic losses. Now, instead of Dungeness crabs, they — and the trial attorneys — hope to net a major payday in court.

Such lawsuits aren’t without precedent, of course. Over the past two years, local officials in states nationwide have filed so-called “public nuisance” lawsuits against fossil fuel companies, arguing they should be held financially responsible for climate-change impacts such as sea level rise. Why does this matter to Florida? In light of the state’s many coastal communities, some of the state’s officials might be tempted to file such lawsuits.

To date, these lawsuits have mostly fallen on deaf ears, with Judge William Alsup of the U.S. District Court for the Northern District of California, in June dismissing climate lawsuits filed by San Francisco and Oakland. Alsup reasoned correctly that the courtroom is a poor venue for solving a problem as vast as climate change. In July, U.S. District for the Southern District of New York Judge John Keenan employed the same rationale in dismissing a public nuisance climate lawsuit lawsuit filed by New York City targeting energy manufacturers.

The reality is that, having experienced a string of losses, trial attorneys are now shopping around for new plaintiffs to push their flawed legal theory. Even if that means finding potential plaintiffs on crab boats in San Francisco Bay. Or even if it means convincing officials in Florida to become the next to play the public nuisance sweepstakes.

However, our elected officials should think twice before using this doomed legal strategy. For starters, that theory is fatally flawed. Existing tort theory does not offer a path of legal support for the claims proposed by those suing energy companies. It is, in fact, impossible to prove cause-and-effect when it comes to a company’s fossil fuel production and global climate change impacts on a local scale. The truth is that everyone who consumes energy contributes to climate change.

This feeble legal foundation is why this type of climate change litigation has failed time and time again in court. In 2011, for example, in the case of American Electric Power v. Connecticut, the U.S. Supreme Court ruled unanimously in an opinion written by Justice Ruth Bader Ginsburg that corporations cannot be sued for greenhouse gas emissions under federal common law.

Such a lawsuit would only add to a Florida legal climate that is becoming more hostile to our state’s economic well-being. Manufacturers today employ more than 367,000 Floridians and create economic output totaling more than $50 billion. More misguided lawsuits against energy manufacturers are not what Floridians need. They will only line the pockets of trial attorneys while distorting our legal system in the process, serving as the perfect example as to why we need for tort reform.

All of this is something Fort Lauderdale Mayor Dean Trantalis should keep in mind given reports he is in open discussions with EarthRights International to have the city file a similar lawsuit. According to Mayor Trantalis, “If there was a way for the city to get any money, obviously we’re all interested.” According to the reports, the city would seek to recover taxpayer costs for climate adaptation, including storm water infrastructure upgrades, road construction, and sea wall replacement.

Should Fort Lauderdale or any other Florida cities move ahead with suing energy companies in hopes of scoring new revenue, it would just be another attempt to use the courts to solve issues better left to the legislative and executive branches, a point made twice in the past year by federal judges in San Francisco and New York City. And when the dust settles, they will have done nothing to address Florida’s environmental challenges.

Trial attorneys, thwarted by the courts and panned by legal authorities, should have by now conceded that their public nuisance strategy is without a legal basis. Instead, they continue to search for new hunting grounds. We shouldn’t allow these kinds of lawsuits to harm our state’s manufacturing sector. We should work cooperatively alongside manufacturers, pursuing meaningful solutions that actually help the environment while protecting critical Florida jobs.

Dr. Robert McClure is the President and CEO of The James Madison Institute, which is a nonpartisan, free-market think tank based in Tallahassee devoted to research and education on public policy issues.