By George Nethercutt
The issue of climate change has again found its way to the Supreme Court, and the outcome of the case is likely to have a significant impact on America’s energy future for years to come.
On Jan. 19, the Supreme Court held oral arguments over the review of jurisdiction in a case the city of Baltimore has filed against various energy producers in an attempt to hold them liable for purported damages from climate change.
Although the Supreme Court hearing focused on the narrow issue of federal versus state jurisdiction within the lawsuit, the ruling is likely to affect the outcome of the more than two dozen other climate lawsuits across the country currently being litigated, including one in King County, Washington.
Should the Supreme Court find these lawsuits fall under federal jurisdiction, prior precedent shows that they would likely be dismissed in short order. This perspective makes sense when one considers the fact that climate change is a global phenomenon and interstate air pollution is inherently an issue to be addressed at the national level.
Federal judges have consistently ruled that climate policy is not an issue for the courts. In 2011, the Supreme Court, in a unanimous decision, argued similar claims are displaced by the federal Clean Air Act. The opinion was written by none other than the late Justice Ruth Bader Ginsberg, who concluded that judges do not have the institutional capabilities to assess the “environmental benefit(s) potentially achievable (by the impact of this litigation against) our Nation’s energy needs and the possibility of economic disruption.”
In short, regardless of where the arguments fall on federal versus state jurisdiction, the courts should ultimately dismiss these lawsuits based on the lack of their merits.
Simply stated, judges cannot attribute culpability to select energy companies for the global challenge of climate change. Additionally, these companies are providing a legal product that states and municipalities have demanded for consumption.
If elected officials are truly concerned about addressing climate change, they can take measures at the municipal level and forge partnerships with the business community. King County, for example, is already engaged in a number of initiatives that are far more practical than lawsuits in addressing climate change as outlined in their “Strategic Climate Action Plan.”
Released in August , the plan lays out a number of concrete and immediate measures such as modernizing codes to make buildings greener to construct, maintain and operate, to launching the 3 million trees initiative that will increase tree canopy and accelerate land conservation. Those who are truly concerned about mitigating the impacts of climate change will be better served to focus their energy on expanding upon these kinds of efforts.
There is division among lawsuit proponents regarding their objectives for suing companies over climate change. It is not about protecting the environment – one attorney representing Colorado municipalities in their lawsuits admitted that “intervention by the courts isn’t a great way to make policy” – it’s about making money.
Oregon Law Professor Mary Wood, for example, stated the objective of these climate lawsuits is to “drain the profits of the fossil fuel companies.” Others have admitted the exercise is a blatant attempt to raise money to pay for local infrastructure and other projects. King County, for example, is requesting damages to pay for things such as landscaping costs due to drought and road repair for climate change-linked damage. From penalizing the energy companies and draining profits to paying for local infrastructure projects, there is no consensus as to why energy companies should be held liable for selling the energy products we all need. Financial considerations, though, always seem to be a common denominator.
Ultimately, asserting that specific companies are to blame or should be culpable for climate change impacts is an inappropriate and frivolous exercise. This is borne out not only by a careful analysis of the facts but also by a nationwide poll, commissioned by the Manufacturers’ Accountability Project, which found that only 2% of voters believe that suing companies is the best way to pay for existing climate change damages.
There is nothing illegal or unlawful about producing or consuming energy and it is disheartening that a Supreme Court ruling may be necessary to achieve resolution of these lawsuits. Government bodies such as King County should stand down from their legal actions. They should focus their attention instead on pursuing climate solutions through cutting-edge technology and innovation as well as through practical measures promoted by elected officials, not by lawsuits that abuse the court system.
George Nethercutt was a Republican member of the U.S. House of Representatives from 1995 to 2005, representing Washington’s 5th Congressional District, where he served on the House Appropriations Committee.
Local journalism is essential.
Give directly to The Spokesman-Review's Northwest Passages community forums series -- which helps to offset the costs of several reporter and editor positions at the newspaper -- by using the easy options below. Gifts processed in this system are not tax deductible, but are predominately used to help meet the local financial requirements needed to receive national matching-grant funds.
Subscribe to the Coronavirus newsletter
Get the day’s latest Coronavirus news delivered to your inbox by subscribing to our newsletter.