Towhey: Lawsuits hinder progress on climate change solutions

Jessica R. Towhey

Photo by Dominique Murray

Innovations in technology and free economies — not judges or nuisance lawsuits — provide solutions to the challenges of climate change.

That was the view of a group of energy experts and legal scholars at a panel discussion hosted by the nonpartisan Hudson Institute, a think tank in Washington.

More than 30 states, counties and municipalities have sued energy companies using state public nuisance and consumer laws, hoping to address global climate change with local nuisance laws in state courts. It’s the wrong strategy, said Donald J. Kochan, executive director of the Law and Economics Center at Scalia Law School at George Mason University.

“Courts are meant to resolve real disputes. Courts are there to say what the law is, not what the law should be — not to create rules and not to expand over time.”

The panel, moderated by Brigham McCown, senior fellow and director of the Hudson Institute’s Initiative on American Energy Security, called the lawsuits counterproductive. The courts’ role is not to “fill in the gaps” that activists claim exist in regulations and legislation.

“This idea that we need more legislation, more litigation to solve the challenge at hand is a false way of thinking,” added Drew Bond, CEO of PowerFieldEnergy and C3 Solutions. “We need more economic freedom, not less, in order to innovate more in order to solve the climate challenge.”

Environmentalists sometimes argue for more central power over the economy by claiming countries like China have a leg up on finding solutions since the Chinese government can make fast decisions while the United States gets bogged down in the legislative process. Bond countered that argument by pointing out the results.

Countries governed by “communism, socialism and dictators” have a far worse environmental track record than countries with free — or at least freer — economies.

According to Statista, China released 11.4 billion metric tons of carbon-dioxide emissions in 2022. It was also “one of only a handful of countries” in which emissions increased in 2020 as a result of COVID-19, the data site said. In contrast, the United States released 6.34 billion metric tons of carbon-dioxide equivalents in 2022, according to the Environmental Protection Agency.

Bond also discussed the “climate anxiety” of younger people who have been told “the sky will fall, therefore the government has to step in and solve our problems.”

One of the more prominent legal cases right now is Honolulu v. Sunoco, which is pending before the Supreme Court. Local entities are suing several global oil and gas producers over five major allegations of public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass for global harm from their activities.

Phil Goldberg, special counsel of the Manufacturers’ Accountability Project, described the case of municipal overreach to seek payment for activities taking place outside their boundaries.

“It’s not for Hoboken or Baltimore or Honolulu to say, ‘Who do we want to blame for this?’” he said. “The political nature of these decisions and the political nature of all these litigations … everybody’s out there trying to sue somebody over this issue as opposed to dealing with the issue in any kind of real and sustainable and material way.”

At least one court has agreed. In July, Baltimore City Circuit Court Judge Videtta A. Brown threw out a similar lawsuit by the city of Baltimore targeting 25 energy companies over climate change. 

“Global pollution-based complaints were never intended by Congress to be handled by individual states,” Brown ruled, adding that “under the Constitution’s structure, matters that involve interstate controversies cannot be handled in state court under state law.”

“We need a national, cohesive response to this, and it can’t be done piecemeal,” Goldberg told the Hudson panel.

Panelists also discussed how the lawsuits are a form of hidden taxation on consumers as companies are forced to cover the legal costs.

Bond referenced Germany’s “top-down, bad climate policy” in which the government picked winners and losers with coal and nuclear “losing” while natural gas that is exported from Russia winded up the “winner.”

“When government tries to pick winners and losers, ultimately who loses most are the consumers,” he said. “We have reduced greenhouse gas emissions faster than any other county in history by having access to clean, affordable natural gas. That happened not because the government said so, but because an entrepreneur went out and took risks.”

Editor’s note: Jessica R. Towhey writes on education and energy policy for InsideSources. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.