COVID-19 is grabbing headlines, but climate change remains a pressing challenge here in New Jersey and around the world. The good news is that New Jersey has the manufacturing capabilities, workforce and resources to lead this challenge. The bad news is that rather than focus on policies to foster this innovation, the New Jersey Senate is invoking another time-honored American tradition: litigation.
Our Senate is considering a resolution asking the state to sue energy manufacturers for “causing” climate change. The Environment and Energy Committee recently approved it, and it now awaits floor action. This blame game is a counterproductive distraction.
I have deep respect for the resolution’s sponsor, Senator Weinberg. I worked with her in Bergen County politics in the 1990s, helping to elect President Clinton and advance issues of state and national importance when I worked in the congressional office in Hackensack. She is wrong, though, about the value and legitimacy of this litigation.
Climate lawsuits have been around for years and have always failed—for good reason. The first lawsuits seeking to blame energy companies for climate change targeted utilities, auto manufacturers and energy producers in the early 2000s. The courts dismissed these cases, with the case against utilities reaching the U.S. Supreme Court in 2011.
In a unanimous ruling written by Justice Ruth Bader Ginsburg, the Supreme Court explained that setting national energy policy to account for climate change is not a liability issue for courts, but a complex matter of “national legislative” concern. Congress and the EPA are “better equipped to do [this] job than individual district judges issuing ad hoc, case-by-case” decisions.
What the Supreme Court understood is these lawsuits are not about legal theories, but our way of life and setting American energy policy. Today’s lawsuits are no different. The people behind the litigation got together in 2012 to make today’s cases look different from the one the Supreme Court rejected, but as two federal judges have already held, they aren’t. Making and selling energy are not liability-causing events.
Now, the litigation’s organizers are promoting an industry-blaming narrative, saying the companies had information about climate change but did not tell us. The U.S. Securities and Exchange Commission launched and dropped its investigation into their public disclosures on climate risks. Also, when New York’s Attorney General pursued such a lawsuit last year, the judge called the allegations of deceit, fraud and misrepresentations “hyperbolic.”
So, what then is this about? Politics and public relations. A few weeks ago, a Texas court called out this litigation as “lawfare.” The case uncovered internal emails from the litigation’s organizers explicitly stating its purpose was to “delegitimize” energy companies, their workers and supporters as political actors. The judge said this litigation is an “ugly tool” for trumped up charges of wrongdoing.
Nevertheless, the organizers are still appealing to elected leaders like those in New Jersey to file lawsuits that reinforce this narrative. As I learned in Bergen County 25 years ago, repetition is the mother’s milk of politics.
The New Jersey Senate resolution is based on these same allegations. In essence, it states that energy manufacturers are to blame because they knew energy use causes climate change, still sold us the energy we demanded and “plan to continue doing so.” The truth is, we all knew and still know. This does not make them or us liable for climate change.
It can be gratifying to pass the blame, but that is not how to get things done. If you live down the shore, in low-lying areas or elsewhere, you know the importance of this moment. Those of us who care deeply about climate change, our economy and our way of life must focus our elected leaders on game-changing innovations, not these politically-driven litigations. For 150 years, oil, gas and other energy sources transformed our society, powering homes and businesses, giving people historic economic independence and allowing each of us to live better, healthier and longer lives. What we need now are urgent, widespread efforts to mitigate the impacts of modern society on our planet.
This approach works. Over the last decade, innovation has allowed manufactures to reduce their carbon footprint by 21 percent, with the U.S. making greater GHG reductions in the past decade than any other nation.
Lawyers and lawsuits cannot develop the technology we need to source and use energy more efficiently. It is time for governments to stop wasting valuable time and resources on this litigation ploy and take steps that will actually address this shared challenge.
Phil Goldberg hails from North Jersey and is a member of the New Jersey Bar. He is now Special Counsel to the Manufacturers’ Accountability Project and Office Managing Partner of Shook Hardy & Bacon, LLP in Washington, D.C.