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June 27 2018

Judge: The Courts Should Stay In Their Lane

by Julie Gunlock

On Monday, federal judge William Alsup threw out a lawsuit brought by two California cities--San Francisco and Oakland--that charged oil companies with creating climate change. 

Several media outlets are reporting on the ruling: 

Forbes: Judge Boots The Global Warming Cases Of San Francisco And Oakland Against Oil Companies

New York Times: Judge Dismisses Suit Against Oil Companies Over Climate Change Costs

The Wall Street Journal: Judge Dismisses Climate Suits Targeting Big Oil Companies

Those are all worth reading but in short, in the ruling, Judge Alsup acknowledged that global warming is a danger worth addressing, but said that “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” adding that the “…court will stay its hand in favor of solutions by the legislative and executive branches.” 

Also important to note that in the 16-page ruling, Judge Alsup acknowledged how fossil fuels themselves (and by extension, the companies that explore, drill and refine fossil fuels) have helped improve living conditions for all humans:

With respect to balancing the social utility against the gravity of the anticipated harm, it is true that carbon dioxide released from fossil fuels has caused (and will continue to cause) global warming. But against that negative, we must weigh this positive: our industrial revolution and the development of our modern world has literally been fueled by oil and coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of us have benefitted. Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded? Is it really fair, in light of those benefits, to say that the sale of fossil fuels was unreasonable? 

Even when Alsup declares his acceptance of the science of human-caused global warming, he explains that the court should consider how these “negatives” have nonetheless improved the human condition:

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. 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. 

Reactions to Alsup’s ruling have been positive. Donald Kochan, aProfessor of Law at Chapman University Fowler School of Law in Orange, California, who himself has written on these nuisance lawsuits, praised the ruling, saying: 

Judge Alsup’s opinion is well-reasoned and well-balanced, recognizing the existence of climate change and its impacts but preserving the proper role of the judiciary.

Judge Alsup reaffirmed that the elected branches, not courts, are best suited to resolve climate change and regulate activity if they see fit.  No matter that climate change is real and serious, federal common law cannot be expanded by judges just because we want someone to blame and desire a deep pocket to pay.

Judicial remedies are purposefully cabined and are not meant to provide a remedy for every ill of the world.  Sometimes we need to ask the political branches to take the charge.

The Rule of Law requires that judges not bite when plaintiffs propose extraordinary and novel expansions of retroactive tort liability.  Judge Alsup properly refused what would have been an unprecedented expansion of liability.

In a critical portion of the opinion, Judge Alsup stressed that the separation of powers requires that courts stay in their lane and allow policy decisions to be made by policy makers, not judges.

One hopes Judge Alsup’s ruling serves as a warning to other states, cities and municipalities that have jumped on the nuisance lawsuit bandwagon. These lawsuits clearly aren’t going to be the homerun many plaintiffs thought it would be, nor will judges dismiss the folly of trying to legislate through litigation. 

IIndependent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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