Call the right pro to address climate change

You don’t call a plumber to solve a termite problem, and you don’t call an exterminator to fix a leaking pipe. It is all about finding the right fit between expertise and solutions. Law and our system of government work the same way. 

When we use a fancy term like “separation of powers” among branches of government, it is the same idea. The term just means that there is a division of labor in our Constitution that commits areas of specialization to one branch or another. 

Ignoring these divisions is dangerous. Yet, that is what advocates and municipalities are increasingly doing when they bring climate change lawsuits in courts, awkwardly trying to affix blame and retroactively impose massive liabilities on a few companies for a global, diverse source and innumerable-contributor problem. 

They should instead be calling the legislative pro, focusing their efforts on generating useful prospective policies from the legislative and regulatory branches. Put simply, there’s a real problem, but the request for help from the courts is misguided. 

Dozens of these lawsuits, brought mostly by municipal, county or state governments – often in partnership with leading plaintiffs’ attorney law firms – are still percolating in state and federal courts under the novel tag of “public nuisance.” The lawsuits attempt to make multinational oil companies alone the scapegoats for local climate-related harms, and for providing the funding to fix climate change.  

Increasingly, the plaintiffs are coupling their public nuisance claims with consumer fraud or deception claims. The gist of this argument is that the oil companies kept us from understanding that we were polluting when we filled our gas tanks. Of course, these ridiculous claims would require the courts to ignore the well-known fact that research and public knowledge on climate change and its relationship with energy production and consumption goes back to the 1950s. Such widespread knowledge for over 70 years is precisely what courts routinely find as a bar to any claims of deception.

Climate change is complex and complicated, requiring the kind of debate, deliberation, tradeoff-making and balancing of interests that legislatures do (and that courts are expressly expected to refrain from doing). This may even include the need for new, specialized legislation. It is an area where targeted regulations require expert research and analysis. Again, something regulatory agencies do, not courts. In other words, we shouldn’t be asking the courts to unclog the climate change piping.  

These conclusions are supported by the U.S. Supreme Court’s recognition in West Virginia v. EPA on June 30 that Congress needs to pass laws on climate rather than ask courts to be complicit in distorting existing statutes to let agencies do things there is not yet legislative authority to do. There is no climate change exception to requiring Congress to do its work to pass targeted laws after rigorous discussion and investigation.   

For these very reasons, some courts have wisely dismissed these misdirected lawsuits — yet they are still getting filed in a manner that will only serve to make energy more expensive. In one notable California federal district court case in 2018 dismissing a climate change public nuisance claim, Judge William Alsup warned in his order that these lawsuits with novel theories of liability were “breathtaking” in scope. If allowed to proceed, these cases would necessarily “interfere with reaching a worldwide consensus” on how to address climate change, like the exterminator getting in the way as he tells the plumber what to do. 

Relying on this allocation of responsibility among the branches is not new. When dealing with air pollution in the late 1960s and 1970s, we looked to Congress to engage in a legislative debate about how to fix the air quality problem. The Clean Air Act and other pieces of legislation and regulations followed. That legislation was the result of intense policy discussions, legislative debates and, yes, compromise among competing economic, consumer and environmental values.  

We did not legitimize regulation by litigation to get more than what was possible through legislative means. And we didn’t open the courthouse doors to lawsuits against our most disliked air polluters for their past lawful actions. We recognized a problem, called the right pro and moved forward with democratic solutions. 

In fact, that is why the U.S. Court of Appeals for the Second Circuit in City of New York v. Chevron, while dismissing one of these public nuisance lawsuits in April 2021, explained that “the issues raised in [these cases] concerning domestic emissions are squarely addressed by the Clean Air Act,” and any public nuisance “federal common law claims concerning domestic greenhouse gas emissions are displaced by statute.” That Second Circuit opinion should serve as a good model for other courts across the country, yet many courts have yet to dismiss these nuisance suits. 

As a TV ad campaign quips, you don’t call a golf, fishing or tennis “pro” when you need an Orkin pro. Similarly, you don’t call upon the courts when you need Congress. 

Donald J. Kochan is a professor of law and deputy executive director of the Law & Economics Center at George Mason University Antonin Scalia Law School.