Can we sue our way to climate action?

As the world grapples with climate change, many of us who are young environmentalists are frustrated with the lack of progress in Washington. Many mourned former President Obama’s failure to pass a cap-and-trade bill in 2009, lost the battle against deregulation during the Trump era and are now witnessing President Biden’s Build Back Better agenda die a slow death in Congress. Their frustration is leading them down a different, more dangerous path: climate litigation. 

Climate change solutions, responsible conservation and environmental stewardship are issues that many young people care about deeply, and they have strong feelings about the future of the planet. As climate change becomes a more significant issue in the minds of young Americans, it is critical for us to champion effective ideas. It is just as important for us to remain skeptical of proposals that are impractical, unproductive or self-interested. This is why I am concerned about the idea of using the courts to address climate change. I worry about the expense and lost time that this approach may entail, with likely no environmental benefit.

The allegation in current lawsuits is simple: energy companies supply us with energy we need, and our use of that energy emits greenhouse gases and contributes to climate change, so they should have to pay the consequences. For two decades, advocates have repackaged and repurposed them under various forms. Some lawsuits invoke public nuisance principles, arguing that emitters should pay communities to mitigate the impacts of climate change. Others seek to tie energy production directly to climate impacts, such as increased flooding and fires, as well as others focus on who knew and said what and when. Most seek damages, while others claim constitutional rights.

On Jan. 25, oral arguments were heard at the Fourth Circuit Court of Appeals over the future jurisdiction of one of these lawsuits, a case brought by Baltimore against more than a dozen energy companies trying to make them pay for infrastructure improvements the city says it needs to address climate change. The case has the potential to set an important precedent for more than 20 other similar lawsuits brought by states, cities and counties across the United States. At hand is the question of whether state or federal courts will be the legal venue for Baltimore’s climate lawsuit.

The city and its activist supporters want to kick authority to state courts — as opposed to federal courts — where they seem to hope for a local, sympathetic judge. Following the Fourth Circuit oral arguments, Manufacturers’ Accountability Project Special Counsel Phil Goldberg noted, “Baltimore’s claims may be creatively packaged under state law, but the nature of climate change, this litigation and the remedies they seek are all inherently beyond the scope of any state.” That’s true.

Jurisdiction aside, the most important question is whether these lawsuits are even good for the environment and the fight against climate change. They are not.

It seems that an explicit goal of the lawsuits’ proponents is to make companies raise their prices significantly to pay damages from these lawsuits. Forcing energy companies to raise their prices on us so they can pay for infrastructure in places most of us don’t live does not serve us in the fight against climate change. 

What people behind this litigation refuse to acknowledge is that energy companies are producing a legal and universally used product. We all rely on these energy products to heat our homes, power our cars and cook our food. Of course, reducing emissions is crucial, but raising energy costs through these lawsuits and impoverishing everyday Americans will not tackle global emissions. Suing a few energy companies over climate change is not the pro-environment position.

So, why do activists keep pursuing them? The likely conclusion is they function as political publicity stunts, rather than serious attempts to tackle climate change. These theatrics are antithetical to an environmental conservation mission. The mission should be committed to advancing solutions that encourage energy innovation and modernize America’s infrastructure while supporting natural methods to reduce greenhouse gasses from our atmosphere.

Young Americans see the value in encouraging public-private partnerships that lower costs and support American innovation in new technology like carbon sequestration. These technologies coupled with practical regulatory reform will allow for easier development of clean energy projects that produce measurable benefits and will positively affect the very municipalities currently wasting valuable time and resources suing energy companies in court. 

Regardless of what happens in the Baltimore case, the debate is much larger than simply deciding the appropriate legal venue. If we are serious about tackling climate change — and we must be — we must pursue innovation and collaboration. We don’t have time to waste on what amount to frivolous lawsuits that are likely little more than political stunts. 

Christopher Barnard is the national policy director at the American Conservation Coalition. Follow him on Twitter: @ChrisBarnardDL