Virginia Should Avoid Frivolous Climate Litigation

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Is the company that makes ladders legally responsible if you fall off of one?  Or if you cut yourself picking up broken glass, is the maker of that glass legally liable?  You probably think such lawsuits would be “silly” and should be tossed from the courts immediately.
And then again, a consumer of diseased chicken purchased at a local grocery store likely has a legal claim if he or she can identify a specific processing plant or chicken farm that caused the problem.  However, catching the flu because I live next door to an elementary school does not give me much of a chance of winning a lawsuit against the school or the community for having children running around with colds.  But this kind of flawed reasoning is the basis of law suits by some progressive (read “left-wing”) state and local governments around the country against energy companies because of “climate change.”
However, should state or local governments get involved in frivolous or nuisance law suits using taxpayers’ money?
As Virginia’s statewide elected officials, and some of our local officials, show more and more “progressive” or left-wing tendencies, it is hoped that these governments will not be part of the national legal fad of suing energy companies. This would be a misuse of taxpayers’ money and, according to some responsible legal minds, of the law as well.  Lawsuits initiated by governments with a political or ideological agenda focused on energy companies detract from efforts to have a serious, fact-based discussion on climate change and how best to confront it.
One year ago, San Francisco and Oakland, followed by other counties and cities on the Pacific coast, filed lawsuits against several energy companies alleging they knowingly contributed to climate change.  These lawsuits hope to force the companies to pay for economic and property losses resulting from projected rises in sea levels, droughts, and wildfires linked to climate change. New York City filed a similar suit as did Baltimore. In July, Rhode Island became the first U.S. state to test this strange legal theory.
Climate change is a global phenomenon with various and conflicting potential causes. Even if climate change could be linked directly to human activity, that human activity encompasses a lot more than a handful of companies supplying energy key to maintaining our living standard. Each of us creates demand for energy to be sure our lights turn, that we can fill up our gas tanks or charge our electric cars, and that our furnaces and air conditioners do their expected job. So are we are all guilty of causing climate change?
Without the production and supply of energy, human civilization would be impossible. New York City’s lawsuit  was dismissed last July.  Federal District Judge John Keenan wrote, “The immense and complicated problem of global warming requires a comprehensive solution that weighs the global benefits of fossil fuel use with the gravity of the impending harms.” Supreme Court Justice Ruth Bader Ginsberg, a “liberal” on our highest court, wrote in 2011 that corporations cannot be sued for greenhouse gas emissions under federal common law and instructed that legislative bodies and government agencies are, “…better equipped to do the job than individual district judges issuing ad hoc, case-by-case decisions.”
Thankfully, the silliness of seeking multi-billion dollar payments from specific companies for the worldwide phenomenon of climate change is not lost on some elected officials. Earlier this year 15 state Attorneys General filed an amicus brief  opposed to the law suits filed by San Francisco and Oakland. They pointed out that the “…list of potential defendants is limitless.” What they are saying is that any producer or consumer of significant amounts of energy could be sued.   Indeed, if such law suits succeeded, they would criminalize the manufacture of products that people want and need. And manufacturers other than energy companies would become sitting ducks for those who enjoy harassment by lawsuit.
Virginia’s state or local governments should remain on the sidelines and not participate in such lawsuits.  It would be much better for Virginia’s governments to partner with energy companies and other manufacturers to reduce environmental problems by working together for the benefit of all.  Such cooperation would help calm the hyper-intensity of the current level of political and policy animosity.
(This column first ran in the Fredericksburg Free Lance Star on November 13, 2018.)
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