Just weeks into the new year, on January 19th, the U.S. Supreme Court heard oral arguments about whether climate lawsuits against major energy companies should be entertained by federal or state courts. [1] Energy manufacturers such as BP, Shell, Chevron, and ExxonMobil appealed the lawsuit by Baltimore, which has sought damages for the impact of global climate change.[2] A decision is expected by June.
Whatever the U.S. Supreme Court decides on this lawsuit’s jurisdiction, one truth remains: as national leaders explore climate change solutions, we should pursue innovative and financially viable solutions in lieu of trial attorney driven lawsuits that may ultimately do little or nothing to address climate injustice or reduce emissions.
The case for climate action is strong–as the new Biden Administration knows and is planning. Unchecked, the destabilizing force of climate change will hit the poorest countries and the poorest people hard across our own nation and will have geopolitical consequences. The good news is that we have solutions at our fingertips, including the investment and deployment of renewables. Already, investment in renewable energy sources has quadrupled renewable capacity worldwide from 414 gigawatts to about 1,650.[3] Renewables in 2018 generated about an eighth of all global electricity, avoiding 2 billion tons of carbon dioxide emissions.[4]
The case for climate lawsuits on the other hand? They simply don’t hold water. Yet, instead of focusing on approaches to lower carbon emissions, many public officials have misguidedly pursued climate lawsuits in a futile attempt to collect paydays–that don’t trickle down to affected communities.
For example, spurred on by trial attorneys, Oakland, San Francisco, and New York City filed lawsuits in 2017 and 2018 seeking damages for the effects of climate change. In the San Francisco lawsuit, the plaintiff’s firm Hagens Berman’s contract stipulates the firm would receive a 23.5 percent contingency fee in the event of a successful judgment or settlement.[5] This fee would be awarded despite zero obligation to do anything to reduce global temperatures or devote earnings to communities devastated by the unfolding climate crisis. Similarly, the firm Sher Edling has convinced a number of California communities, including Marin County, San Mateo County, Imperial Beach, Santa Cruz, and Richmond, as well as Baltimore, Maryland, and Washington, DC, to file similar lawsuits. In DC alone, Sher Edling stood to split a prize of $70 million with a partner firm.[6]
Not surprisingly, Sher Edling has filed every climate lawsuit in state court. Why? Because federal courts in Northern California and New York City have dismissed them. Federal jurist William Alsup in Northern California, in dismissing the San Francisco and Oakland climate lawsuits in 2018, stated, “The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”[7] Ironically, though not surprisingly at all, the lawsuits don’t seek damages for actual emissions of carbon pollution, as that would implicate the government clients, who use hydrocarbon fuels to heat their buildings and operate their vehicles, from whom these trial attorneys seek huge paydays.[8]
In that context, the January 19th Supreme Court hearing could be a serious inflection point in the quest to eschew meaningless climate lawsuits in favor of real-life climate change solutions that make a difference like accelerating investments and deployment of renewable energy infrastructure. Instead of rewarding for-profit firms like Hagens Berman and Sher Edling, public officials can push for energy policies that strike a balance between protecting communities from climate change and keeping energy affordable and accessible. After all, for those of us who care deeply about climate action, this is a more effective solution than a climate lawsuit.
Lawsuits and trial attorney rent seeking aren’t the answer. To win the fight, earnest and prudent officials should focus on developing and innovating clean energy solutions. We should lean on the ingenuity of U.S. manufacturers to accelerate the deployment of technologies to combat this global challenge, leading and partnering with other nations to dramatically increase and facilitate aggressive and increasingly profitable investment in renewables such as wind, solar, biofuels, battery technologies, and energy efficiency.
And fortunately, the future is bright. Capital investment to finance projects with positive environmental benefits recently passed the $1 trillion mark.[9] Solar, wind, and battery technologies are expected to attract $10 trillion by 2050.[10] Wind and solar now represent the least expensive option for adding new power-generating capacity in about two thirds of the world’s markets. With electricity demand set to increase 62% by 2050, energy sources that supply this enhanced demand must be clean.
The path to a sustainable future lies ahead, but it is not well served by precarious climate litigation–where the results often do not reach those most harmed. The U.S. Supreme Court’s forthcoming final decision on the January 19th hearing has a chance to strike a blow for common sense and for climate by sending the message that our legal system isn’t going to declare open season in state courts for more climate lawsuits. That’s the first step to refocusing on the monumental challenge of reducing global temperatures for future generations.
[1] Hersher, Rebecca. “Supreme Court Considers Baltimore Suit Against Oil Companies Over Climate Change.” NPR, NPR, 19 Jan. 2021, www.npr.org/2021/01/19/956005206/supreme-court-considers-baltimore-suit-against-oil-companies.
[2] Hurley, Lawrence. “Supreme Court Takes up Energy Companies’ Appeal over Baltimore Climate Suit.” Reuters, Thomson Reuters, 2 Oct. 2020, www.reuters.com/article/us-usa-court-climate/supreme-court-takes-up-energy-companies-appeal-over-baltimore-climate-suit-idUSKBN26N2DB.
[3] “A Decade of Renewable Energy Investment, Led by Solar, Tops USD 2.5 Trillion.” UN Environment, www.unep.org/news-and-stories/press-release/decade-renewable-energy-investment-led-solar-tops-usd-25-trillion.
[4] Ibid.
[5] O’Brien, John. “Hagens Berman Reduces Fee For Latest Government Client To Sue Over Climate Change.” Forbes, Forbes Magazine, 11 May 2018, www.forbes.com/sites/legalnewsline/2018/05/11/hagens-berman-reduces-fee-for-latest-government-client-to-sue-over-climate-change/#3e72a9f7f186.
[6] Office of the Attorney General for the District of Columbia. “Notice of Contract Awards Over $100,000.” Notice of Contract Awards Over $100,000 | Attorney General Karl A. Racine, oag.dc.gov/notice-contract-awards-over-100000.
[7] Snow, Kat. “Federal Judge Dismisses S.F. and Oakland Climate Lawsuit Against Big Oil.” KQED, 25 June 2018, www.kqed.org/science/1926396/federal-judge-dismisses-climate-case-against-big-oil.
[8] Fisher, Daniel. “Supreme Court Takes Appeal of Baltimore Climate-Change Lawsuit.” Legal Newsline, 2 Oct. 2020, legalnewsline.com/stories/556431165-supreme-court-takes-appeal-of-baltimore-climate-change-lawsuit.
[9] “Sustainable Debt Joins the Trillion-Dollar Club.” BloombergNEF, 17 Oct. 2019, about.bnef.com/blog/sustainable-debt-joins-the-trillion-dollar-club/.
[10] “New Energy Outlook 2020: BNEF.” BloombergNEF, about.bnef.com/new-energy-outlook/.