The courts are not the place to craft or regulate climate policy
By Donald J. Kochan, Opinion Contributor
Among the noblest decisions a judge can make is to refrain from accepting an invitation to act in excess of his or her authority. In dozens of lawsuits across the country, asserting novel and extra-legal public nuisance claims – for climate change, opioids, guns, COVID-19, lead paint, vaping and other social ills – judges can nobly refuse to turn their state and federal courts into places for plaintiffs’ attorneys to profit or for public officials to politically posture.
One of these cases reached the U.S. Supreme Court this past term. Although the issue before the Court was very narrow, the case nonetheless reminds us of the folly that awaits if the courts lose their way once they reach the core claims in these cases.
The city of Baltimore, like dozens of its brethren city or county governments nationwide, with the encouragement of plaintiffs’ attorney allies, sued the group of defendant energy companies alleging that the companies had committed a public nuisance when their acts from decades past contributed to climate change.
In its highly technical 7-1 decision in City of Baltimore v. BP, the U.S. Supreme Court did not discuss the merits of the case, which included claims for climate change injuries under public nuisance doctrine. Instead, the Court simply gave the energy company defendants a chance to an appeals process in the appellate court below, which has increased the likelihood that the case originally brought against them in state court by Baltimore may remain in federal court.
This was no small victory. But that was nonetheless all the Supreme Court decision did. Hence, the unfinished business of defining the proper scope of public nuisance facing courts still evaluating the merits of these climate cases.
The dozens of these cases pending against energy companies are asking federal and state courts to impose broad common law tort liability for legal acts producing and distributing energy. They request that the courts look beyond statutes and regulations to pile on additional climate duties that the elected branches of government have deliberately not imposed.
Despite the forum debate recently before the U.S. Supreme Court, the critical constitutional separation of powers issue is not whether a state court or a federal court should hear these cases. Neither should.
Indeed, the concern is also not whether climate change is real. It is. The problem is that the courts are not the place to craft policy solutions to social or environmental problems.
At stake is democratic legitimacy – which branches of government legitimately set public policy. It is about comparative institutional competency – who is better at resolving complex and scientific questions and balancing environmental, economic and other values. And it is about the rule of law and fundamental fairness. This means not imposing retroactive costs on businesses for entirely legal activities of the past simply because our standards have changed, our public coffers are thinner than we’d like to fund abatement of social ills, and successful businesses seem like easy pickins.
In a series of recent opinions – especially out of the federal courts, including most recently the U.S. Court of Appeals in City of New York v. Chevron – judges have deployed many of these same arguments to rebuff profiteering public entity plaintiffs bringing public nuisance claims for alleged climate change contributions of energy companies.
Yet, municipalities and public entities continue to waste taxpayer funds and divert time, energy and funding from more productive ways to combat climate change by bringing these lawsuits. The limited receptivity in the federal courts is part of the reason why the plaintiffs in the most recent climate public nuisance lawsuits have so desperately tried to stay in state courts. They hope state judges will be more sympathetic to the goals of transforming courts into playgrounds for policymaking.
To preserve the crucial role of an independent judiciary in our system of government, neither state nor federal courts should be seduced into this illegitimate role. Climate policy requires expert analysis of complex scientific matters, balancing of societal interests after transparent processes with public hearings, public comment and rigorous debate. The unfinished business for the courts is to stay out of that business. Leave that to the legislators and regulators.
Donald J. Kochan is professor of law and deputy executive director of the Law & Economics Center at the George Mason University Antonin Scalia Law School.