William Allison provided the 2021 Climate Law roundup in his Energy In Depth article 2021 Revealed Why Climate Litigation Will Continue To Fail. Excerpts in italics with my bolds.
The past year has not been a great one for supporters of the climate litigation campaign. There were several devastating blows dealt to climate lawsuits, both on the process and the merits, and as Law360 summed up:
“The U.S. Supreme Court expanded the ability for fossil fuel companies to fight climate nuisance lawsuits lodged by state and local governments, and the Second Circuit rejected one such suit outright.”
In response, the plaintiffs’ attorneys have had to call in the reinforcements and place academics on their payroll to help explain why, against all the evidence, these lawsuits aren’t failing. Meanwhile, major activist organizations are holding personal meetings with top government officials in order to recruit them to their side.
We’ve taken the liberty of compiling the climate litigation campaign’s year in review:
One of the most devastating defeats of the nearly decade-long climate litigation campaign came in May when the U.S. Supreme Court overwhelmingly sided with the energy companies on a key procedural question that will help decide if these lawsuits are heard in federal or state court.
From Scotus Blog:
The Supreme Court on Monday gave a major boost to a group of oil and gas companies that are seeking to stay out of state court and defend a lawsuit against them in federal court instead. The Supreme Court did not weigh in on the merits of the city’s case. Instead, the fight before the court was over procedure. By a vote of 7-1 (with Justice Samuel Alito not participating), the justices agreed with the companies – which include BP, Chevron and Exxon Mobil – that a federal appeals court had the power to review an entire order sending the case back to state court, rather than only one of the grounds on which the companies relied to move the case to federal court.
The case, BP PLC v. Mayor and City of Council of Baltimore, originated three years ago as a lawsuit by the city of Baltimore seeking to hold the companies responsible for their role in climate change. The city contends that the companies knew that the use of fossil fuels would lead to global warming but continued to produce and sell fossil fuel products anyway.
In a 7-1 decision, the court ruled that the U.S. Fourth Circuit Court of Appeals should have considered all grounds for removal before affirming a lower court’s decision that sent the City of Baltimore’s case back to state court. The decision had significant ramifications for the climate litigation campaign, and cases from California, Colorado and Rhode Island also landed back in the circuit courts for further consideration.
The magnitude of the ruling wasn’t lost on the media. Bloomberg Law observed that the industry now has the “the upper hand” in these cases, while Reuters reported the lopsided decision meant a difficult path now lies ahead for the plaintiffs.
New York City Defeat
On the merits of climate litigation, New York continues to be the poster child for these flailing lawsuits. The New York attorney general’s case against ExxonMobil was decisively defeated in 2019, and in April of this year, the 2nd Circuit affirmed a lower court’s dismissal of New York City’s public nuisance lawsuit, ending the case for good. The court ruled that lawsuits aren’t the proper tool for addressing climate change:
“To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” (emphasis added)
The defeat is a sharp rebuke to outgoing Mayor Bill de Blasio who blatantly admitted the goal of the suit was to put the oil and natural gas industry out of business, saying in 2018, “Let’s help bring the death knell to this industry.”
Despite the loss, less than a month later, de Blasio filed yet another climate lawsuit despite politicians in New York having an 0-3 record, this time focused on consumer deception claims.
King County Withdraws
In the spring of 2018, King County, Washington (home of Seattle) was among the first municipalities to file a climate lawsuit. Just over three years later, it threw in the towel on the case.
In September, the county gave “notice of its voluntary dismissal of this action,” making it the first plaintiff to give up on a lawsuit. The move also represents a blow to plaintiffs’ attorney Matt Pawa, who was a key player at the infamous La Jolla conference in 2012 where the playbook for the entire climate litigation campaign was mapped out and who was at the helm for San Francisco and Oakland’s loss as well as the New York City defeat.
Attribution Proponents Criticize Their Own Science
The use of climate lawsuits has spawned the development of so-called “attribution research” – or the flawed attempt to assign a certain amount of carbon emissions to specific companies.
In June, a group of academics – who are outspoken supporters of the climate litigation campaign – released a report that admits that the climate attribution science currently being deployed by plaintiffs’ attorneys has serious flaws:
“We find that the evidence submitted and referenced in these cases lags considerably behind the state-of-the-art in climate science, impeding causation claims.”
Hey, that’s their words – and it’s very clear why they’re speaking out, and it has nothing to do with the pursuit of greater knowledge through scientific understanding. Instead, it’s all about the litigation. As Friederike Otto, one of the authors of the report, told E&E News just a couple months earlier:
“Unlike every other branch of climate science or science in general, event attribution was actually originally suggested with the courts in mind.”
Admitting your made-up science is really about lawsuits + saying the science stinks = a big defeat for climate litigation.
When Annapolis and then Anne Arundel County each filed climate lawsuits in quick succession earlier this year, it quickly became clear that both municipalities were recruited to introduce these cases by activist groups Chesapeake Climate Action Network and the Center for Climate Integrity.
In a press conference announcing the lawsuit, Annapolis Deputy Manager for Resilience and Sustainability Jackie Guild said:
“I also received information from my contacts, the Chesapeake Climate Action Network, who is busy with pushing towards energy efficiency and clean fuels. They asked me if I knew about these lawsuits and how they were progressing and I had some knowledge, and they thankfully provided me with some additional knowledge.
I asked them about different lawsuits they were aware of and I started exploring some of the information they provided, and the law firm Sher Edling appeared again and again with the lawsuits that have been brought by the twenty-four other states and cities and counties in the U.S. that are suing the fossil fuel industry, and they by far have the most experience.”
In Anne Arundel, documents uncovered through public records requests reveal further coordination, with one CCAN employing writing to the county:
“CCAN, in collaboration with the Center for Climate Integrity is very interested in facilitating lawsuits for cities in Maryland against fossil fuel companies for the ongoing damages brought on by climate change.”
Active recruitment of potential plaintiffs has become a signature for CCI, which successfully pitched Minnesota Attorney General Keith Ellison in 2019, while the Institute for Governance and Sustainable Development, CCI’s sponsor, is fronting the legal costs for Hoboken, N.J.’s lawsuit.
So, after several years of waging war in the courtroom without racking up even a single victory, and with a Congress and White House that have expressed a sincere desire to do the things that could actually tackle climate change, why are the proponents of litigation continuing to waste taxpayer resources in this vain effort so a few trial lawyers can hopefully become very rich while accomplishing precisely nothing on climate change?