Lawsuit Reform

An Inconvenient Tort: CA Court Affirms that Climate Policy Should Be Handled by Congress, Agencies

On June 25, Federal District Court Judge William Alsup threw out a case brought by the cities of Oakland and San Francisco which sought to hold five major oil companies accountable for the impacts of climate change on the Bay area. The cities argued that Chevron, ConocoPhillips, ExxonMobil, Shell, and BP were responsible for damages to the Bay area as a result of rising sea levels caused by climate change. Further, Oakland and San Francisco argued that on public nuisance grounds the oil companies should be responsible for bearing the financial costs of climate change imposed by their actions. Judge Alsup dismissed the case, arguing that a policy issue of the size and gravity of climate change cannot be handled by a single district court. US courts and plaintiffs’ attorneys should not endeavor to set climate change policy – this is a task best left to Congress and state legislatures.

Attempts to regulate U.S. climate policy via the courts are not new. Four similar lawsuits were filed in the early 2000s in response to the perceived failure of the Bush Administration to adequately address climate issues. Then, as now, addressing an issue like climate change is an endeavor beyond the ability or responsibility of the courts. As Judge Alsup wrote in his opinion, “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.”  The issue would require a judge or jury to consider competing policy concerns, such as “the harmful effects of greenhouse gas emissions, our industrialized society’s dependence on fossil fuels, and national security.” Courts are simply not structured with the manpower, resources, or constitutional purview to develop climate policy that adequately balances the potential climate impact of fossil fuels, the energy needs of American society, and American dependence on foreign sources of energy. Further, the Supreme Court has already found in American Electric Power Co. v. Connecticut that Congress has entrusted such regulatory power to the Environmental Protection Agency (EPA) through the Clean Air Act. As in American Electric Power, Oakland and San Francisco asked a judge to make a decision on how much carbon dioxide an organization can reasonably and lawfully emit. Usurping what is clearly a policy decision from the control of the legislative and executive branches isn’t just poor judgment – according to former Labor Secretary Robert Reich, it’s undemocratic. Judge Alsup made the right decision by deferring to legislative and regulatory power rather than dragging the courts into a complex policy battle.

Beyond being a more-than-questionable use of judicial power, courts making policy decisions to resolve suits brought by localities will do little to provide a solution to global climate problems. Judge Alsup acknowledged that a ruling in favor of Oakland and San Francisco “would have a single judge or jury in California impose an abatement fund as a result of … overseas behavior” and “would effectively allow [Oakland and San Francisco] to govern conduct and control energy policy on foreign soil.” Even if, as both parties and Judge Alsup believe, the cities are facing a legitimate challenge and that fossil fuel emissions are responsible for anthropogenic climate change, “nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.” In order to have a global policy dialogue on the impacts of and solutions to climate change, international concerns cannot be subordinated to the interests of a particular locality.

As a matter of law, public nuisance claims simply aren’t meant to address public policy issues. Public nuisance torts are a complicated and muddy legal issue with a long history dating back to English common law. Historically, public nuisance claims applied to circumstances like the inconvenient placement of a ditch in front of a barn, not whether five enormous oil conglomerates are indirectly causing two major cities to be slowly washed into the sea, the scope of which Judge Alsup described as “breathtaking.” And the consequences of the decision would not stop with the immediate facts of the case. By holding oil companies responsible as the ultimate causes for proximate emissions, the court would open the door to a litany of public nuisance suits. Theoretically, any organization that “enables” the emission of greenhouse gases could be held liable for the sum total of emissions they enable, not just their own emissions. Manufacturers of “gas turbines, furnaces, hot water tanks, road construction equipment, automobiles, and airplanes” could all be affected. Ultimately, according to Phil Goldberg, an expert on civil law issues, “these lawsuits are not about specific legal theories, including public nuisance, negligence or trespass. They strike at the heart of our way of life and how we set American energy policy.”

At the 2018 Annual Meeting in New Orleans, the American Legislative Exchange Council will be discussing how enterprising plaintiffs’ attorneys are working to encourage city and county governments to allow them to sue on behalf of the locality, attempting to legislate from the bench while collecting sizable contingency fees. The “Regulation through Local Government Litigation” workshop will be held Thursday, August 9th and will feature addresses from state and local officials, legal practitioners, and policy experts on this new trend in litigation. The workshop will focus on the concerns that arise when this ill-suited tactic, resting on shaky legal authority, is used in an attempt to address broad public policy issues—including opioids, fossil fuel regulation, labor laws, privacy rights and more—through litigation rather than through the legislative or executive process. For more information, reach out to Civil Justice Task Force Director Amy Anderson at

In Depth: Lawsuit Reform

State legal systems and the liability they exert on businesses and individuals are a disincentive to bad behavior and allow fair players to succeed in the marketplace. When lawsuits inappropriately punish good actors, resources are sucked out of the business economy, away from research & development and job creation. Lawsuit…

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