Climate Lawfare Subverts the Will of the People
Americans elected President Trump and his agenda of unleashing American energy, choosing to prioritize energy freedom and abundance over heavy-handed regulation and climate policy dogma.
This is how policy change is supposed to work. President Biden, green groups, D.C. think tanks, and international organizations enacted a set of policies that prioritized climate goals over everything else. These policies were rejected because they led to runaway inflation, higher energy and electricity prices, and restrictions on our ability to access our domestic natural resources.
Green activists and their government allies often claim to champion democratic values. However, their insistence that their specific policy preferences are the only ones truly aligned with democracy — and the tactics they use to enforce these policies — indicates a total disregard for the genuine concerns of ordinary people. In the last election, voters decided that climate policy was a bust and chose a different path. Instead of accepting this reality, green groups have turned to frivolous litigation to pursue their goal of putting oil and gas companies out of business. Similar to the rise in political lawfare by political operators, energy producers such as ExxonMobil and Shell are facing an avalanche of climate lawsuits from the environmental left, alleging that these companies are culpable for the impact of weather events because of their greenhouse gas emissions.
Cases of this kind have been brought in multiple jurisdictions in the U.S. and across the globe. Fortunately, these efforts have been met with limited success, at least so far. In Hawaii, officials from Honolulu sued 17 energy companies for “creating a public nuisance and failing to warn the public of the risks” posed by their products. The case was recently denied a writ of certiorari by the Supreme Court, allowing the case to continue in state courts. In the Netherlands, a court overturned a ruling that would have mandated that Shell cut its emissions by 45% by 2030 (based on 2019 levels) to force it into compliance with the Paris Agreement. Just last week, the Supreme Court declined to take up an appeal by the plaintiffs in Juliana v. United States, a decades-long case that argues that the federal government has violated their right to a healthy environment.
Though the charges and context surrounding each of these climate lawfare cases differ, the arguments made by plaintiffs follow a similar pattern. As we explained in 2019, the basis of the legal strategy has a single origin:
Most of the arguments brought out against ExxonMobil and other oil companies were built at the workshops of the 2012 La Jolla meeting and are formalized in their summary paper, Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control. The basic strategy is to establish harm caused by climate change, rest the blame squarely on carbon emissions, accuse corporate defendants of having secret knowledge of the harms of climate change and then seek public nuisance damages from those corporations for their contributions to climate change under “joint and several” liability.
This playbook is also being deployed in New York, Vermont, and other Blue States, where activists are pursuing inaccurately named “Superfund” legislation. New York’s Climate Superfund Act requires large energy companies to pay for past “climate damage,” with the funds naturally being directed to a web of green activist interests in their state. These laws face several legal challenges, including issues with liability, retroactive fines, and arbitrary emission calculations. It also conflicts with federal regulations, as the Clean Air Act preempts state-level emissions control.
To prove that energy companies created a public nuisance, plaintiffs have to get a court to agree that production by these companies caused specific events that led to harm. They must conclusively prove that a weather event was made worse or was caused by greenhouse gas emissions – a seemingly impossible endeavor. The fact that attribution of this kind has not been proven has important consequences for the legal theory behind climate lawfare. According to American Enterprise Institute Senior Fellow Roger Pielke Jr., “If single event attribution is not possible, then the legal strategy first formulated in a 2012 La Jolla Workshop focused on holding fossil fuel companies accountable for the occurrence of specific weather events and the damage that results completely falls apart.”
Setting aside the flaws with weather event attribution, making energy companies liable for greenhouse gas emissions ignores the actual users of energy products, including, of course, the state governments of New York and Vermont. As my colleague Kenny Stein explains, “you don’t get to charge automakers fees for the costs of car crashes caused by people driving recklessly.” By definition, commerce requires both buyers and sellers, each with different legal responsibilities. Even if there were a valid nuisance claim, unfairly blaming one party for a shared action, as New York and Vermont are doing by holding energy companies accountable for so-called “climate damages,” reveals the true strategy: extracting money from oil and gas companies.
By tying up energy companies in lawsuits that paint them as villains in the court of public opinion, green groups have found a clever strategy to hurt energy companies financially and attempt to reward themselves in the process. It’s worth noting for those who actually care about improving people’s lives that this entire gambit steals resources away from research and innovation and inevitably increases prices for consumers. Voters understood that the climate policies of the previous administration punished energy producers and drove up energy prices with little or no environmental benefit. That’s why they rejected more of the same at the ballot box. Climate lawsuits and climate liability laws do the exact same thing while circumventing the will of the people in the process. So much for being the defenders of Democracy.
