Dear California: Read the Rulings From New York. Courts Can’t Solve Climate Crisis
The U.S. Court of Appeals for Second Circuit’s 2021 ruling affirming dismissal of New York City’s climate change lawsuit against the oil industry creates a clear road map for California’s latest suit to be tossed, the director of the Law Reform Alliance of New York writes.
Climate Week, which ran from Sept. 17 through Sept. 24, is a reminder of New York City’s mixed record on climate policy.
Policies such as the city’s public transportation initiatives, green buildings programs and construction waste recycling strategies add up to higher marks on New York City’s environmental report card. However, city leadership also has a record of squandering government resources on dubious climate lawsuits against the energy industry, cases that were ultimately tossed by the courts.
Lured by the prospect of shimmering headlines and an opportunity to boost their progressive credentials, former mayors Michael Bloomberg and Bill de Blasio were taken in by the contingency fee lawyers and the network of well-funded environmental outfits directing the coordinated legal attack on the world’s largest energy producers. Unsurprisingly, courts rejected both administration’s attempts to pin responsibility for global energy consumption and emissions on a handful of companies.
Now, California Attorney General Rob Bonta is trying to do the same. In a 135-page complaint filed in San Francisco County Superior Court, Bonta makes a series of arguments similar to those made in New York City’s unsuccessful lawsuits.
We are facing a growing challenge to confront climate change. No amount of litigation or political grandstanding is going to solve this complex problem or create tangible solutions. The U.S. Court of Appeals for the Second Circuit agreed when it dismissed New York City’s climate lawsuit in 2021 and upheld a lower federal court’s dismissal from 2018.
The 2021 ruling, decided by three judges appointed by presidents from both sides of the aisle, stated, “The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’”
The judges ruled climate change is an international issue governed by federal law and foreign policy. State law is neither appropriate nor applicable. They also ruled the Clean Air Act gives the Environmental Protection Agency, not state or federal courts, the authority to regulate greenhouse gas emissions. Finally, the judges noted that the CAA does not address regulating foreign emissions and urged judicial caution and congressional oversight of any potential actions. In short, state and federal courts don’t have the authority to litigate climate change, and New York City’s case had to be dismissed.
Indeed, climate change is not limited to a single state’s borders. California’s lawsuit attempts to use state laws to bypass the political process—processes developed in statehouses and in Congress, not the courts. The U.S. Constitution allows states to experiment with certain policies inside their own borders, but these policies must be developed and implemented by lawmakers, not judges. The courts don’t write and enact policy. That is the job of the legislative branch. More action must take place, but federal lawmakers are better situated to balance addressing climate change, economic growth, energy production, and national security. This network of competing components requires a collaborative approach, not adversarial courtroom dramatics.
California has set out an ambitious road map to achieving carbon neutrality by 2045. Critical infrastructure would need to be in place by then to support these goals. However, these infrastructure projects will rely heavily on the very products that fossil fuel companies provide. These same companies have also been at the forefront of innovation and have made living in a modern, functioning society possible in the first place. Ironically, California wants to sue companies that have sold products which made it possible for the state with the world’s fifth largest economy to even consider its long-term climate goals. Every road and bridge built across the Golden State and every electric vehicle charging station installed in the past 10 years is thanks to the very companies targeted by this lawsuit.
The Second Circuit’s 2021 ruling creates a clear road map for California’s latest suit to be tossed. This begs the question: is this lawsuit a credible legal action or an attempt to grab headlines?
To confront climate change and meet the demands of an ever-growing and modern global society, we need visionary leadership, innovation and economic investment. California’s climate lawsuit will waste countless resources and has little or no chance of succeeding. Identical lawsuits launched by New York City were already struck down in federal court. The American people, from coast to coast, deserve better.
Litigation for the sake of political grandstanding will not solve climate change. We need realistic and tangible solutions to confront the greatest crisis of our time.
Tom Stebbins is the executive director of the Law Reform Alliance of New York.