As originally published on October 19, 2022 in Bloomberg Law
HUNT - Litigation Isn't the Way to Advance Responsible Climate Solutions
The past five years have seen a steady rise in the number of lawsuits filed by local governments against energy suppliers, alleging that those producers should bear considerable costs for the link between their products and climate change.
About two dozen such cases have faced decisions for whether the litigation will be heard in state or federal courts—if at all.
While some attention has been paid in these cases to issues of traceable liability, an undercurrent has been the additional allegation that these energy producers somehow deceived the public, including consumers and government bodies, about the risks of climate change.
The mountain of evidence to the contrary underscores why this allegation is unfounded. If government bodies are serious about advancing responsible climate solutions, they should cooperate with the private sector to achieve progress.
Litigation Diverts Attention
This increasingly visible allegation of deception was brought into sharp focus in Hawaii, where the city and county of Honolulu are pursuing a lawsuit against Sunoco and other major energy suppliers.
The local governments claim that alleged deception by these suppliers over climate change led to any number of consequences, including property damage from extreme weather and land encroachment because of rising sea levels.
In response to the allegations, Chevron, one of the listed defendants, recently filed an answer with several noteworthy points. First, there has been widespread public knowledge, research, and media coverage acknowledging the risks of climate change dating back to the 1950s.
Second, government officials and scientists have long acknowledged that use of petroleum and natural gas potentially contributes to climate change. And finally, perhaps most important, Hawaii public officials continued to encourage the use of these fuels despite their own understanding that such use carried climate change risks.
Pinning the blame for climate change on energy suppliers makes little sense given the context that Hawaii officials knew that encouraging fossil fuel use would have consequences.
It’s also difficult to square these claims with other conflicting and perhaps competing claims in Juliana v. United States, whereby plaintiffs have alleged the US government took part in deception and should bear responsibility for climate change.
The US Court of Appeals for the Ninth Circuit recently declined to rehear the Juliana case after a three-judge panel of the circuit dismissed it in 2020, reasoning that climate change issues should be handled through political processes, not judicial venues.
Public-Private Partnerships the Answer
The reality is that attempting to place blame, whether against energy suppliers or the government, doesn’t advance climate solutions.
Rather than pursue lawsuits against the very companies providing innovative solutions to climate change, activists should be encouraging partnerships between the public and private sector that produce real change. After all, even casual scrutiny shows that claims of deception over climate change have no basis in fact.
Scientists and governments have paid close attention to climate change since the 1950s, conducting research that led to the first United Nations climate change conference in 1979.
A decade later, in 1988, officials created the Intergovernmental Panel on Climate Change to ensure policymakers had access to the latest scientific assessments on the current knowledge about climate change.
The record is clear, too, that national leaders have been well-aware of climate risks and the potential linkage with energy resources, with President Lyndon Johnson stating in 1965 that humanity “has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in carbon dioxide from the burning of fossil fuels.”
In 1981, then-US Representative Al Gore told congressional colleagues that the link between fossil fuels and rising temperatures was “quite obvious.” Six years later, then-Senator Joe Biden introduced the Global Climate Protection Act of 1987 that acknowledged human activity was causing global warming.
In other words, climate change has been no secret. It certainly wasn’t in Hawaii, where rising carbon dioxide levels were reported on the island in the late 1960s. Hawaii did not stop its use of fossil fuels—state policy in 1984 identified fossil fuels as “essential to the health, welfare, and safety of the people of Hawaii.”
After filing its 2020 climate lawsuit against Sunoco and others, Honolulu continued to use fossil fuels, with its state government enshrining fossil fuel use from its 1998 Climate Action Plan as indispensable to tourism.
As America’s most petroleum-dependent state that gets more than four-fifths of its energy from petroleum, Hawaii can’t have it both ways. Oil and natural gas producers may have produced energy supplies, but plaintiffs were the ones demanding it.
Whether in Hawaii or elsewhere, climate lawsuits aren’t the answer. Rather than continue to assert that energy suppliers allegedly concealed the risks of climate change, a claim refuted with even the most cursory review of evidence over decades, local governments should be pursuing more public-private partnerships that advance real solutions.
For example, a recent agreement between U.S. Steel Corp, Equinor, and Shell will see them partner with the Department of Energy to advance a carbon capture use and storage hub in the Ohio, West Virginia, and Pennsylvania areas.
Government funding, paired with private sector-led ingenuity, is the best option we have to fight climate change. We cannot litigate our way to lower temperatures.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.