Home / News / Article


August 12 2018

The writing is on the seawall

via St. Louis Post-Dispatch
by Erin Hawley

In a big blow to green activists and cash-strapped cities looking for new revenue sources, a federal district judge recently dismissed a climate change lawsuit filed by New York City. This decision is a win for the rule of law as the recent spate of climate change lawsuits violate separation of powers principles.
 
Unable to obtain the regulatory regime they want through the legislative process, cities and states across the country have filed suit alleging that five of the largest energy companies should be held liable for the international phenomenon of global warming. These tort lawsuits are wrong-headed for all sorts of legal reasons, but primarily because the democratic branches are in a much better position to balance regulation against the need for economic development.
 
Two federal judges agree.
 
Most recently, Judge John F. Keenan of the Southern District of New York dismissed New York City’s climate change case, finding that its lawsuit was not suitable to judicial resolution. Keenan held that neither state tort nor federal common law provided a cause of action for greenhouse gas injuries. The international nature of the controversy made it wholly “inappropriate” for the interference of state tort law. Keenan also declined the city’s invitation to create a federal common law cause of action for greenhouse gas injuries (federal common law, after all, is limited precisely because it is judge-made law), writing “It is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest.”
 
The ruling was a decisive victory for energy companies particularly because of the stage of litigation: Keenan got rid of the lawsuit at the motion-to-dismiss stage, meaning the court was required to accept each and every one of the city’s allegations as true and also to draw every inference in favor of the city. Keenan found that, even accepting every one of New York City’s allegations as true and even drawing every inference in its favor, the city had failed to state even a plausible claim for relief.
 
Keenan’s opinion is on firm ground: Indeed, a unanimous Supreme Court has already held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” As Keenan pointed out, neither the city’s clever pleading about an alleged conspiracy nor its focus on production does anything to change the fact that the alleged harm — increased temperatures — is a result of emissions, not the production or sale of fossil fuels. And the Supreme Court has already held that the EPA is the entity tasked with weighing competing concerns and setting reasonable emissions standards.
 
The judge also questioned the merits of the city’s case, writing that “it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been (a nuisance) in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades.”
 
Finally, Keenan held that the city’s lawsuit was incapable of judicial resolution for one additional reason: its enormous foreign policy implications. As the Supreme Court held just this term, “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign policy concerns.”
 
This is not the first time that climate change plaintiffs have been shown the courthouse door. On June 25, Judge William Alsup of the U.S. District Court for the Northern District of California dismissed climate change lawsuits by the cities of San Francisco and Oakland on exactly the same grounds, in exactly the same procedural posture. In that case, Alsup found that the cities’ lawsuits failed to state even a plausible claim to relief, because global warming “requires a comprehensive solution that weighs the global benefits of fossil fuel use with the gravity of the impending harms.”
 
This is the second time in a few months that the federal courts have told plaintiff-cities (and their contingent-fee-seeking attorneys), that global warming is an issue for the political branches not the courts. It’s time for them to start listening.
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.​
Follow us