The Deeply Destructive Climate Change Litigation Game

Voters and their elected representatives can be stubbornly uncooperative with interest groups pursuing the achievement of specific policy ends. “Heavy lifting” is the only way to describe an effort to forge a Congressional coalition in support of specific legislation, and “herculean” is the proper adjective for a campaign to elect legislative majorities inclined to support it.

This is particularly the case in the context of climate policies intended to reduce emissions of greenhouse gases (GHG). Such legislative efforts have been rejected by voters and by Congress several times. So what is a pressure group convinced of the truth of its climate arguments, the urgent necessity of its own policy aims, and the nefarious nature of its opponents---“Big Oil”--- to do?

For much of the policy community arguing the crucial imperative of “action” on greenhouse gas (GHG) emissions and the perfidy of the oil industry, this gordian knot can be cut only with litigation, that is, policymaking by the judiciary. A central example of an organization advocating such climate litigation at the municipal level and among state attorneys general calls itself Climate Communications and Law (CCL), about which more below. The behavior and motivations of such groups as CCL deserve far more scrutiny than reporters and other observers have offered.

For now it is more central to examine the pitfalls of litigation masquerading as policy formulation, on the general theory that the production (not consumption) of fossil fuels has created a large “public nuisance” in the form of such climate risks as flooding in coastal regions and the like. At the most basic level, it is obvious that no coherent policy on GHG emissions can emerge from dozens of lawsuits against the producers of fossil fuels filed in state or federal courts alleging “public nuisance” harm. This reality alone makes it clear that the reduction of GHG emissions, supposedly one of the central aims of the litigation strategy, in reality is a sideshow. Far more fundamental, apart from a straightforward money grab, are the ideological goals of hammering the fossil-fuel industry narrowly, and of politicizing and rationing energy use more broadly, and thus reducing the private-sector freedom, enterprise, productive efficiency, and market exchange that abundant energy supplies facilitate.

There is the further matter that that “Big Oil” is so small a part of global industrial operations that elimination of the GHG missions from consumption of the fuels produced by those producers would have virtually no impact on climate phenomena. Whatever the current or prospective harms caused by GHG emissions: Can anyone argue seriously that Big Oil is responsible for all of them? What about other fossil-fuel producers---Aramco and the Russian oil and gas industry and many others come to mind---and agricultural activities, cement production, coal output, ad infinitum? That the litigation is being aimed at only the five or so large producers actually vulnerable in American courts speaks volumes about the pecuniary, ideological, and political imperatives actually underlying this effort. Or is it the goal of the groups promoting such litigation to win these suits and then take aim at one economic sector after another, thus imposing massive losses upon the U.S. economy writ large?

It is no small source of amusement that the plaintiff cities and states being encouraged to file GHG lawsuits have been large consumers of fossil fuels for many decades. Why are they not responsible for climate phenomena? And the same question applies to all other consumers of fossil fuels, which means every single person and business, literally. Obviously, the litigation strategy aimed only at Big Oil is designed to avoid a massive political pushback. The groups promoting such litigation are engaged in self-deception if they believe that a large increase in fuel prices caused by litigation losses will fail to engender a firestorm in Congress, led by policymakers representing producers and consumers of fossil fuels. The tobacco settlement from 1998 will not prove to be a useful model; far fewer people were involved in the production and consumption of cigarettes.

The argument that Big Oil “knew” in the 1980s the adverse effects of GHG emissions in this century is preposterous: Even the Intergovernmental Panel on Climate Change (IPCC) in its most recent assessment report discusses large uncertainties about prospective effects on sea levels and the like. Because the uses of crude oil and natural gas are myriad---fuels, petrochemicals, plastics, and on and on---with GHG emissions outcomes that vary tremendously---litigation, again, is deeply dubious as a regulatory tool. If GHG emissions are likely to result in substantial harm---a premise that is very far from obvious---then it is clear that regulation driven by real expertise and the standard public-notice-and-comment requirements of administrative law would be vastly superior in terms of balancing the benefits and costs of fossil-fuel use.

That the organizations promoting such a litigation approach are driven by ideological imperatives is no secret, as they are supported largely by left-wing foundations and other groups deeply opposed to fossil fuels as a matter of principle. CCL is one such group; it is headed by a former Greenpeace activist. Interestingly enough, CCL has been accused credibly of violating Maryland law on the operations of charitable organizations, even as CCL accuses Big Oil of violating the common law of public nuisance. Whatever the legal realities of CCL’s operations, it is obvious that CCL is attempting to skirt the legal processes delineated in the constitution---actual legislation enacted by Congress and implemented by the executive branch---in its crusade against the oil industry. Not one of us will be safe if it succeeds.