North and South American natives once spoke of the mythical El Dorado, a sacred city made entirely of gold. History records that conquistadors embarked on expeditions throughout the Americas in pursuit of El Dorado and legendary riches. Ultimately their quests yielded nothing but misery and loss.
A modern-day parallel exists among several municipal governments and Rhode Island, which have set out on an equally unrealistic quest for a modern-day “jackpot justice” – a scheme to reap billions from several energy companies.
Using an already discredited “public nuisance” legal claim, Rhode Island and several cities have filed lawsuits that blame all of Earth’s climate change on a few profitable energy companies. The suits allege that, by producing oil, these energy companies have contributed to climate change, which, they argue, may cause damage to their communities in the future. Their cases, incidentally, fail to mention the large amounts of fossil fuels used by these same cities for public transportation, municipal airports, city buildings, and public improvement projects.
Litigants point to a July ruling in which an activist Rhode Island judge overturned a previous decision to move Rhode Island’s climate change case to federal court. Having watched federal courts dismiss many of these claims outright, the plaintiffs believe they have a better chance of success in lower, state courts. Baltimore was also successful in blocking a motion to move its lawsuit to federal court.
Still, climate litigants would be wise to keep the champagne firmly corked as these recent rulings in Rhode Island and Baltimore will likely be overturned. In North Dakota earlier this year, a similar nuisance case against Purdue Pharma was dismissed by a judge who found the plaintiffs failed to meet the required burden of proof. Moreover, the courts reviewing the Oklahoma case are likely to take a more skeptical view of the nuisance tactic, which has generally fared poorly on appeal. For example, a nuisance suit against lead paint manufacturers initially succeeded, only to fail on appeal in 2009, ironically before the Rhode Island Supreme Court.
A major driver of legal precedent denying the use of nuisance ordinances comes from an Obama-era Supreme Court ruling. In the 8-0 American Electric Power v. Connecticut decision in 2011, the U.S. Supreme Court ruled that corporations cannot be sued for greenhouse gas emissions because the Clean Air Act specifically tasks the Environmental Protection Agency and Congress with the proper regulatory authority. Put another way, only the executive and legislative branches – not the judicial branch – may regulate and impose climate change policy. That precedent was properly cited last year when New York City’s climate lawsuit was bounced out of court. Also last year, a federal judge dismissed Oakland and San Francisco’s lawsuit for being outside the court’s authority.
In addition to the utter lack of legal substantiation, these lawsuits reveal how these municipalities are speaking out of both sides of their mouths. In one setting they downplay risks of climate change and in other settings they pretend the risks have never been higher.
Consider San Francisco’s 2017 municipal bond offering which reassuringly told potential investors, “The City is unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur, when they may occur, and if any such events occur, whether they will have a material adverse effect on the business operations or financial condition of the City and the local economy.” Yet in its multi-billion-dollar climate lawsuit, the city went full-on Chicken Little, warning, “Global warming-induced sea level rise is already causing flooding of low-lying areas of San Francisco.”
The example isn’t isolated. Marin County, California’s lawsuit alarmingly asserted that there’s a 99-percent risk of an epic climate-change-related flood by 2050. But a municipal bond offering to potential investors failed to warn of any potential climate change dangers claimed within its lawsuit. San Mateo County’s prospectus advising bond investors that it’s “unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur” didn’t stop it from forecasting a 93-percent chance cataclysmic flood by 2050 in its lawsuit against oil companies. The examples go on.
Aside from the shameless hypocrisy of mayors wooing potential investors while claiming pending climate disaster in court, the motivation behind these lawsuits is clear. Many cities filing lawsuits against energy companies are financial train wrecks, seeking billions to offset their mismanagement. Huge legal awards – enough to make their fiscal troubles vanish – have a powerful allure. The prospect of jackpot justice has fogged their judgment just as surely as the conquistadors who vainly searched for El Dorado.
If anything, the mayors of Oakland, New York, San Diego, and others are seeking pots of Fool’s Gold. These greedy politicians should stop abusing the legal system, wasting taxpayer dollars, and put a halt to their fantasy gold-digging.
Horace Cooper is a legal commentator and a Senior Fellow with the National Center for Public Policy Research.
Note to Readers: Issues & Insights is a new site launched by the seasoned journalists behind the legendary IBD Editorials page. Our mission is to use our decades of experience to provide timely, fact-based reporting and deeply informed analysis on the news of the day.
We’re doing this on a voluntary basis because we think our approach to commentary is sorely lacking both in today’s mainstream media and on the internet. If you like what you see, feel free to click the Tip Jar over on the right sidebar. And be sure to tell your friends!
It’s difficult to create things because creation takes time, care and thoughtful nurturing. It’s easy to destroy things because destruction is reckless, careless and to simply put it, doesn’t take as long.
That’s what the environmentalist industry is doing with fossil fuel based energy systems. They devote massive amounts of money, effort, and time trying to destroy the fossil fuel industry.
Generating enough energy to feed, cloth, shelter, transport, and entertain billions of human beings is difficult, but, is being accomplished through the use of fossil fuels.
Until workable alternatives to fossil fuels are found environmentalists need to stop the reckless talk about replacing fossil fuels with wind and solar energy.
My entire household and two electric cars are power mainly by the PV solar system on our roof. It paid back in three years in gasoline replacement alone. Now, we get free house and horsepower.
The Green New Deal is real. You will love your first EV.
Too late. The cheapest and cleanest power now available to power companies is not gas, not coal, not nukes, but wind pus battery storage and PV plus battery storage. We have utility-scale batteries now replacing peaking plants.
Get the real news from industry sources not political ones like this.
Not to mention that cities and states actually collect more in taxes from the sale of gasoline and diesel alone, than the oil companies make in net profit per gallon.
Cities are heat sinks with temperatures much higher than other areas. The temperatures of cities have been used to raise the estimated temperatures of surrounding areas, and even distant areas, in order to claim that there is global warming. Now, cities are going to court seeking damages based on fake statistics that are used to support the warming cult