Twelve cities and counties (“the cities”) have filed suit against five companies alleging worldwide harms. According to plaintiffs, these energy companies should be held liable for the impacts of the international phenomenon of global warming including “the melting of the ice caps, the rising of the oceans, and the inevitable flooding of coastal lands.” These are issues of national and international significance. It is thus hardly surprising that a number of federal laws and international agreements address this very topic. The Executive branch and congressional legislators are surely in a better position to balance regulation with the interests of advancing and preserving economic, industrial, and social development. And they are in the best position to bring all of the players to the table including greenhouse gas-emitting giants India and China.
Yet a few left-leaning cities, located mostly on the Coasts, have decided to take matters into their own hands. Dissatisfied with the democratic process, they have resorted to the favored-tool of the plaintiffs’ bar: legislation through litigation. This transparent attempt to change national energy policy should be cut off at the pass. Courts are in the business of interpreting statutes; they have no constitutional authority to make national (and international) energy policy decisions.
The cities base their claims on public nuisance law—the plaintiff bar’s most recent darling. Their 50-some page original complaint is remarkably short on the law—just over one page. And for good reason. Until very recently, public nuisance required criminal activity. Yet these cities target production activity that is sanctioned by every state and the federal government. Indeed, states and localities often offer tax and other incentives to induce fossil fuel exploration and investment in their local economies.
Moreover, this is not the first time that localities have tried to sue energy companies for global warming. Just a few years ago, the Supreme Court made clear that energy companies cannot be held liable for the effects of global warming because the Clean Air Act directly addressed the issue of greenhouse gas emissions and displaced any federal common law nuisance claim.