The courts are simply not the right place to resolve the complex issues of climate change. Demanding payments from bogeyman defendants for past acts that were completely legal is neither fair nor reasonable — and such a strategy is not going to get us to climate change solutions.
And yet the State of California just joined a long line of governmental entities that would rather sue oil and gas companies in court than do the serious work of balancing competing interests to develop an effective and comprehensive policy solution to climate change problems.
In late September, the California Attorney General filed suit against several of the world’s leading energy producers and their trade association, the American Petroleum Institute, claiming their production, sale and advertising of fossil fuels makes them liable for climate change. The suit uses regularly repeated — and increasingly rejected — theories of “public nuisance” and claims of consumer fraud for alleged failure to sufficiently help consumers understand the obvious: that fossil fuels cause carbon emissions.
These kinds of cases are beginning to buzz after the Supreme Court declined in April to consider arguments as to why these lawsuits should be heard in federal or state court. In effect, the high court paved the way for these cases to proceed in state courts, without commenting on whether the theories have any merit.
Notably, similar cases that have already reached the merits stage have regularly shown that judges are ill-equipped to consider, and not empowered to embrace, climate change litigation in their courts. Two years ago, the Second Circuit Court of Appeals evaluated the merits of a lawsuit brought by New York City that raises claims almost identical to those brought by the California Attorney General.
In that case, City of New York v. Chevron, the Second Circuit effectively catalogued many of the problems that plague these lawsuits. The complex nature of climate change means that the issue cannot be reduced to a tort law problem. As the Second Circuit put it, “Global warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law.” Furthermore, “judicial caution and foreign policy concerns counsel against permitting such claims to proceed under federal common law absent congressional direction. And since no such permission exists, each of the City’s claims is barred and its complaint must be dismissed.”
The court opined that, if there are any legal solutions, at best “it calls for the application of federal common law, not state law.” Thus, there is no role for state courts unless they are applying federal law. And even when applying federal law, Congress has displaced common law remedies, preferring to, as one would expect in a system of separated powers, resolve complex policy issues through legislation like the Clean Air Act — not litigation. As the Second Circuit ruled, “the Clean Air Act grants the Environmental Protection Agency — not federal courts — the authority to regulate domestic greenhouse gas emissions.”
Only the political branches of government can balance all of the competing interests; courts do not have that competency. Further, lawsuits can actually disrupt the careful balancing that the elected branches have sought to accomplish. Again, the Second Circuit provides wise counsel when it explained that “to permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”
In fact, addressing an issue indistinguishable from the current California Attorney General’s efforts, the Second Circuit slapped down NYC’s efforts to circumvent the “complex web of federal and international environmental law regulating such emissions” by trying to sue companies about the issue instead. The Second Circuit exposed that these kinds of plaintiffs “effectively [seek] to replace these carefully crafted frameworks — which are the product of the political process — with a patchwork of claims under state nuisance law,” concluding that the court “cannot condone” such creative litigation.
The Second Circuit also acknowledged the oddity of saying a company can be liable, decades after acting, for selling a lawful product, noting an unwillingness to allow lawsuits that involve suing “oil companies to recover damages caused by those companies’ admittedly legal commercial conduct in producing and selling fossil fuels around the world.” A judgment against the energy producers in these cases would thus constitute retroactive punishment that flies in the face of the rule of law.
Neither the California AG nor the California courts are special. All the infirmities recognized by the Second Circuit in the 2021 Chevron case are equally present here. The California case should meet the same fate: It should be dismissed.
Donald J. Kochan is Professor of Law and Executive Director of the Law & Economics Center at George Mason University Antonin Scalia Law School.