One of the more disturbing trends in American politics over the past decade has been the effort by some activist groups to shift policymaking from Congress and the executive branch, where options can be debated and scrutinized, to the courthouse. This is especially the case when it comes to energy and the environment, with a slew of climate lawsuits hitting federal and state courthouses across the country. Indeed, by the end of 2020, more than 1,100 climate change cases had been filed in the United States.
The cases grabbing the most attention have been brought by about two dozen cities, counties and states against energy companies, including small concerns in places such as Delaware and Hawaii, for causing climate change. Perhaps the most notorious is New York City’s ongoing attempts to get money from energy companies for local climate projects. The U.S. District Court in Manhattan dismissed one NYC case in 2018, saying, “The serious problems caused by [climate change] are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”
After New York City appealed that case, the Second Circuit Court of Appeals in New York dismissed the lawsuit yet again. In April of this year, the three judge panel stated, “Global warming presents a uniquely international problem of national concern. It is, therefore, not well-suited to the application of state law.” Undeterred, New York City made a big media splash by filing another lawsuit based on the same general premise on Earth Day.
Baltimore’s case also has been in the news lately, because it went up to the U.S. Supreme Court this year. In 2018, the city sued 26 fossil fuel companies in state court claiming they should pay monetary damages for everything from coastal flooding to Baltimore’s poor air quality. On May 17, the Supreme Court ruled in favor of the defendants by a 7-1 margin on a jurisdictional appeal, specifically directing the Fourth Circuit Court of Appeals to review all of the defendants’ arguments for why the case should be heard in federal, not state, court.
These cases are indicative of the organized efforts by environmental activists and special interest groups to change energy and environmental policies through litigation rather than legislation. Climate litigation also has given birth to a new, controversial funding arrangement, whereby foundations reportedly pay attorneys general offices directly to hire lawyers for the purpose of bringing climate lawsuits. A Manufacturers’ Accountability Project report found these private attorneys wield the government’s authority, but private interests hire and pay them. Some architects of this litigation have acknowledged their goal is to make hydrocarbons significantly more expensive so that the costs of climate change get “priced” into gasoline, electricity, plastics and other products made from fossil fuels.
Climate litigation also threatens domestic jobs. America has become a major exporter of crude oil, liquefied natural gas, and petrochemicals over the past decade. To the extent their production becomes more expensive in the United States, we will simply lose market share to producers in other parts of the world, especially OPEC and Russia. U.S. imports of oil and refined products have already ticked up by more than 900,000 barrels per day since last October.
American policy regarding the future of oil and gas needs to be debated in an open forum focused on reality, rather than ideology. For example, according to the latest annual report from the International Energy Agency, even in the most optimistic scenario for an energy transition fossil fuel consumption will decline by only 30 percent globally by 2050. What is more, greenhouse gas emissions from the oil and gas sector in the U.S. have declined steadily since 2008, per EPA data, and likely will continue to do so.
Environmental activists and policymakers must acknowledge that climate solutions need to be global. America could reduce its carbon emissions to zero and have no measurable impact on climate change if China, India and other large polluters don’t change their policies.
It is true that achieving a bipartisan consensus in Congress about appropriate initiatives to combat climate change has been difficult. But the legislative branch, and not the courts, remains the appropriate venue for making energy and environmental policies. Frivolous lawsuits do nothing to mitigate climate change but simply impose “deadweight” costs on plaintiffs and defendants. For the defendants, these costs actually may divert resources away from investments in low-carbon technology solutions.
Balancing America’s need for abundant and reliable energy along with climate action is critical to our nation’s economic future and global competitiveness. If that means reducing fossil fuel production with attendant higher energy costs for American households and businesses, Congress should make that decision, not the courts.
Bernard L. Weinstein is an emeritus professor of applied economics at the University of North Texas, retired associate director of Southern Methodist University’s Maguire Energy Institute, and a fellow of Goodenough College in London.