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For President Biden and his allies, climate change—now called a “climate crisis”—has grown from being a widely accepted, incredibly important public policy challenge into a mantra in support of a fundamental transformation of our economy from top to bottom. They talk often of a coordinated climate agenda that includes deploying the full capacity of federal agencies in partnership with state and local governments.  Much of this agenda will be fought out in the halls of Congress, international settings, and the ballot box.  But that hasn’t stopped an alliance of local officials, trial lawyers and activists from running to court, in hopes of convincing individual judges to impose their preferred climate policies. 

Fortunately, last month a federal appeals court in New York shot a dagger through one part of this courtroom strategy, tossing out a suit by New York City against five international oil companies that sought to recover, as the Court put it, “damages caused by those companies’ admittedly legal commercial conduct in producing and selling fossil fuels around the world.”

The loss was resounding.  New York City had tried to sidestep federal law, including the Clean Air Act and other federal environmental regulations, by relying on state-law nuisance and trespass claims.  But the court unanimously dispatched that attempt.  The court emphasized that New York City’s sweeping legal theory would intrude into a public policy dispute and upend “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.” A similar case in California has been rejected as well, though the fight is far from over.

The New York case is noteworthy not just because judges appointed by both Republican and Democratic presidents stood firm against New York City’s untethered overreach, but also because the city was represented by trial lawyers from Hagens Berman Sobol Shapiro LLP, a Seattle-based firm whose founder, Steve Berman, has been labeled a Titan of the Plaintiffs Bar.  

The New York City case perfectly illustrates how the nation’s trial lawyers have joined forces with the far left to try and circumvent voters and obtain radical policy outcomes through the courts.  In the words of the court, “New York City was trying to, effectively impose strict liability for the damages caused by fossil fuel emissions no matter where in the world those emissions were released (or who released them).”  In this and other similar municipal cases the goal is plain: rely on wacky public nuisance and trespass theories to cripple the nation’s energy companies, impose radical climate policy that would never win at the ballot box, and line the pockets of trial lawyers along the way.

And the central role of the trial lawyers in these ideological efforts cannot be overstated.  This is the height of lawyer-driven litigation.  The New York suit is the product of a nationwide road show by Hagens Berman, with the firm selling cities like New York and Baltimore and other local governments on this planned attack.  Each enlisted Hagens Berman to file a complaint, with a guarantee that the firm would get a cut of as much as 24% of any judgement or settlement.

This role for the trial lawyers reflects a major escalation that needs more attention.  It has long been known that trial lawyers give millions to liberal political allies. Morgan & Morgan, famous for its ubiquitous billboards, was responsible for over $4 million in the past two election cycles. Motley Rice out of South Carolina was responsible for over $2.5 million.  And Hagens Berman gave almost half-a-million in federal election money, which represents about $4,000 per lawyer. What the New York case highlights is how trial lawyers go well beyond political giving in their effort to support liberal causes.  Whether it is Hagens Berman trying to bankrupt the nation’s energy companies or Cohen Milstein sending settlement money away from consumers and into the hands of the ACLU, these firms have truly become an arm of the political left, managing to spend immense sums of time and money using questionable legal theories to press for liberal policy victories in the courts.   

Trial lawyers are of course allowed to pick political sides.  But it is crucial that we all stop looking the other way when they play their shadowy games and instead start treating them as the self-interested special interest partisans that they are.

The recent ruling in New York is an important one and a sign that the courts are seeing these cases for what they are. However, the battle will go on, as local officials and trial lawyers will continue trying to use the courts to score giant pay days and set the nation’s policy agenda through judicial edicts, without having to deal with our democratic process.  Here is hoping that the losses keep piling up and the activists and their trial lawyer allies get the message that this is exactly the wrong way to approach such a huge public policy question.

O.H. Skinner is the Executive Director of Alliance For Consumers, and the most recent Arizona Solicitor General.

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