A large number of municipalities, counties, and even one state have recently sued the
oil companies, some coal companies, some gas companies, all essentially parts of the fossil
fuel industry saying two things.
One, that you knew when you were marketing these products back in the 1960s and 1970s,
and into the 1980s, that the effects of climate change would follow upon their use.
And second, you didn't tell anybody.
The public nuisance lawsuits in climate change started around 2017 when you started seeing
municipalities bring lawsuits against oil companies to hold companies liable under novel
theories of public nuisance claims.
Private nuisance is brought by a private plaintiff as for uh, injuries suffered by their property.
Oh, and their, their, the property entity, a city, a county, uh for you know, damages
suffered by the uh, by the public entity as to its property.
An example of a public nuisance is when someone uses their property and doesn't uh directly
impact the property of another individual, but instead impacts something which the public
has an interest in, in the whole.
Such as a stream.
So a discharge into a stream, a discharge into the air that therefore dissipates and,
but nonetheless might have an impact on the entire public.
This is not a new strategy.
Plaintiffs, attorneys, and um, and even some governmental entities have tried to find ways
to use the tort system to hold individuals liable for things which were difficult to
hold them liable for through legislation.
Often times this was done in a seemingly retroactive manner in which individuals were being told
that they were being sued for activities that they conducted in the past.
Lead paint, asbestos, tobacco, these are all instances in which lawsuits have been predicated
on novel theories of tort liability.
The burden of paying for climate damages should rest with the fossil fuel companies to the
extent that they knew that their products were going to cause this problem, and didn't
tell anyone, didn't disclose it, or in many cases affirmatively misled the public about
those consequences.
Local governments have to incur increased costs of providing services as the result
of climate change.
And there are two ways for them to pay for that, one is they could increase taxes on
their residents.
The other one is to go to the corporations that marketed these fuels for decades without
telling people that the consequences of using these fuels, and say, “Hey, you should be held responsible
for the d- damages that your products cause when you knew what they would be and you didn’t tell anyone.”
Contrary to asking the courts to get involved, the regulatory or statutory approach is one
that should be preferred.
It should fer- preferred from a separation of power standpoint first and foremost.
That is, courts are meant to say what the law is, not what the law should be.
And so from a formal separation of powers standpoint, courts are not well-equipped, and, in fact
are not constitutionally uh permitted to develop new law, to create new law, to, to announce
new policy, or even to uh look at evidence and, and try to make a decision on what should
be the best policy.
The climate nuisance cases are not seeking to usurp the role of Congress or regulatory
agencies in deciding what behavior should be going forward.
If Congress or the agencies believe that it's appropriate to reduce carbon dioxide and other
greenhouse gases in the atmosphere, they should go ahead and do that.
In the United States, federal climate change regulations, and federal climate uh legislation
do not focus on compensating local governments, they focus on, going forward, how can we reduce
the amount of greenhouse gases going into the atmosphere?
And, that is a completely separate matter from whether or not the fossil fuel
corporations should be held liable um to the individual governments.
The public nuisance climate litigation is a way to find funding essentially for public
projects and public uh programs, which we believe are necessary today to, to abate some
of the problems that climate change will bring.
Therefore, it is not so much about finding the right parties that might have been emitters
of pollutants, but instead going after those who we think can better pay the bill.
This is not something courts are equipped to do.
The legislature and, and the executive, they're able to balance, and take into account competing
interests, both the economic gain that comes from the activities that we're going to regulate,
as well as the environmental harm that comes from those same activities.
These lawsuits are an efficient way of allocating market responsibility.
Everyone should want people who manufacture products and put them in the stream of commerce
to disclose the problems behind them, and that way everyone benefits, the market has
far more information, and it is a far more efficient system.
The question becomes whether or not the courts are the appropriate venue for determining
uh which activities should be lawful, and which activities should not be lawful.
That's not what courts are for.
When we have a widespread harm with widespread contributors, it calls for a societal solution
through the legislative or regulatory branches, uh rather than through the courts trying to
pin the costs on just a few potential contributors.