Posts Tagged ‘climate change’

Judge skeptical toward New York City climate lawsuit

“New York City’s attempt to hold five of the world’s biggest oil companies responsible for damage from global warming didn’t seem to impress a judge during oral arguments Wednesday to determine if a lawsuit can proceed.” Judge John F. Keenan grilled the city about its standing to sue, its own investments in the energy sector, and its attempt to dress up an already-lost challenge to emissions as a not-yet-tried challenge to sales of products resulting in emissions.

“Aren’t the plaintiffs using the product?” Keenan asked. “Does the city have clean hands?”

“Yes, the city uses fossil fuels,” [plaintiff’s attorney Matthew] Pava responded.

[Larry Neumeister, AP/ABC News] More: John O’Brien/Forbes, Erin Mundahl, Inside Sources (15 state attorneys general file amicus brief on defendants’ side]

Andrew Grossman on municipal climate suits

 

In a recent Cato Daily Podcast with Caleb Brown, Cato adjunct scholar Andrew Grossman of Baker & Hostetler discusses the “legally aggressive” new round of climate change litigation, in which municipalities in California and Colorado, as well as New York City, have sued energy producers and distributors seeking to recover damages over the release of carbon dioxide into the atmosphere.

As Grossman notes, the idea of suing over the role of carbon emissions in climate change has by this point been tried many times. The most obvious approach would be to sue large industrial emitters of carbon, which is what some state governments did in one of the most prominent cases, filed against electric utilities. In its 2011 AEP v. Connecticut decision, however, the Supreme Court ruled that such outputs were regulated comprehensively and exclusively at the federal level through enactments like the Clean Air Act, and were not subject to an additional level of state regulation through public nuisance claims. Suits on other theories, such as Comer v. Murphy Oilfrom the Fifth Circuit and the Kivalina case in the Northern District of California, have been launched “to enormous bombast and press attention and they have all bombed out…. Those cases were the low-hanging fruit. Those were the more obvious legal theories if you were going to try to bring this kind of case,” he says.

Now the question is whether litigants can accomplish an end run by instead attacking upstream, pre-emissions activity, specifically the extraction and distribution of fossil fuels destined to be burned. Ambitiously, some of the new suits attempt to apply state common law to activities occurring around the world – to the doings of worldwide corporations such as Royal Dutch-Shell, for example, and to oil production from places like the coast of Norway and its subsequent use by European motorists. Needless to say, many of these processes are comprehensively regulated by the laws of the European Union and its member countries. Doctrinally, then, the new efforts get into even deeper water (so to speak) than strictly domestic claims. From the podcast:

If a court in California is going to go around telling Norway what to do, well, gosh, Norway may not really like that. And what do you do in that instance? It’s not apparent to me how this works. How does the court figure out what Norway’s regulations are and what Norway is doing about this? Who’s going to tell them? I don’t know. What if Norway disagrees with whatever it is that the court decides needs to be done in this case? Does Norway complain to the court? Do they send an ambassador to file a brief or something? I don’t know. This has never happened before. And what if Norway decides that they don’t like whatever it is the court is doing and they’re going to impose, say, reciprocal trade tariffs, or something like that, against the United States on the basis of one of these rulings? Does the court hold them in contempt?

Listen to the whole thing here (cross-posted from Cato at Liberty).

Environment roundup

Boulder joins suits demanding climate damages from energy companies

The litigation campaign had previously recruited several California cities and New York City, and now three local governments in Colorado, the City of Boulder, Boulder County, and San Miguel County, are joining in demanding recoupment of moneys spent because of climate change. I’m quoted in Michael Sandoval’s account in Western Wire:

Walter Olson, a Senior Fellow at the Cato Institute, told Western Wire that besides pushing for settlement, an additional objective is implementing new regulation via the courts, rather than legislation or administrative rulemaking….

The multi-state, multi-pronged approach is key, Olson said, given the differences between states on everything from recovery to discovery procedures.

“The strategy in these cases is typically to recruit as many plaintiffs as possible, with an emphasis on actions in different states. States have, e.g., different consumer laws to sue under that may allow different theories of recovery, or different procedures each of which may place the defendants at some particular kind of disadvantage,” Olson said….

“Typically the government plaintiffs are offered a deal of ‘no fee unless successful,’ just as in the ads on late-night TV,” Olson said….

Olson said that the approach in Colorado may be slightly different, given the reaction to the lawsuits filed in California and New York City that have been viewed simply as money-grabs.

“The first wave of these climate suits have gotten a reputation in the press as organized by law firms seeking contingency fees who intend to run the actions for maximum cash payout,” Olson said. “Involving EarthRights and a community like Boulder could be an effort to change this image by introducing more of an idealistic non-profit tone and maybe a suggestion that the goal isn’t just to squeeze money out in a settlement and then return to business as usual, which is basically what happened with the tobacco settlement,” he concluded.

I also mention that speculative litigation of this sort is made vastly easier by our lack of a loser-pays rule.

A very different view — and one with which, needless to say, I disagree — from the Niskanen Center, which is participating in the suits.

Climate change litigation roundup

  • Wearing two hats: mayor of Imperial Beach, Calif. suing oil companies is also with an environmentalist group [Ben Wolfgang, Washington Times] “Cross Examination Is Going To Be Brutal” given local officials’ earlier statements [Karen Kidd, Forbes, citing Richard Epstein]
  • Municipalities’ suits ignore important goal of California law “that emissions should be reduced, not simply shifted out of state due to high costs and burdensome regulations” [Dorothy Rothrock (CMTA), Sacramento Bee]
  • Washington Legal Foundation webinar on public nuisance suits with Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP;
  • “Schwarzenegger to Sue Big Oil for ‘First Degree Murder’” [Edward Isaac-Dovere, Politico]
  • “What is a non-mood-affiliated way to get up to speed on climate change issues?” [Tyler Cowen and commenters; brief Cowen explainer on mood affiliation]
  • “Whether it is lawsuits against opioid manufacturers or lawsuits against oil companies, public policy should be crafted in the statehouse, not the courthouse.” [David Yates, Southeast Texas Record]

Environment roundup

  • “Lolita the killer whale has lived at Miami Seaquarium since 1970. Do the conditions of her confinement, including sharing her tank with dolphins that engage in inappropriate sexual behavior, amount to ‘harm’ and ‘harassment’ in violation of federal statute? The Eleventh Circuit says no.” [John Ross, Short Circuit, on PETA v. Miami Seaquarium]
  • California suit about Prop 65 warnings on coffee grinds on [Sara Randazzo/WSJ, Pierre Lemieux/EconLog, earlier]
  • NYC mayor De Blasio, who recently filed long-shot suit, says he hopes to “bring death knell to fossil fuel industry” [John Breslin, Legal NewsLine] “People don’t need to smoke cigarettes, but they have needed energy for many decades,” one of many reasons suing Big Oil is different from suing Big Tobacco [Amy Harder, Axios]
  • Squirrel rescue saga: “I begged and pleaded for a few more weeks, but was essentially told I needed to release him even though it was the middle of winter.” [Christine Clarridge, Seattle Times]
  • Aluminum smelter vs. orchards: a historic instance of nuisance litigation working well as a regulatory method? [Douglas Kysar, SSRN]
  • “Privatizing Federal Grazing Lands” [Chris Edwards, Cato]

Banking and finance roundup

Environment roundup

Climate change suit roundup