On Climate, the Courts Are Closed

The only path to a stable climate future lies in the consolidation of political power among climate hawks, not futile lawsuits.

Lenny Bruce famously observed that in the halls of justice, the only justice is in the halls. When it comes to climate change, a June 25 US District Court ruling certainly proves Bruce right:

A federal judge on Monday threw out a closely watched lawsuit brought by two California cities against fossil fuel companies over the costs of dealing with climate change. The decision is a stinging defeat for the plaintiffs, San Francisco and Oakland, and raises warning flags for other local governments around the United States that have filed similar suits, including New York City.

The judge, William Alsup of Federal District Court in San Francisco, acknowledged the science of global warming and the great risks to the planet, as did the oil and gas companies being sued. But in his ruling, Judge Alsup said the courts were not the proper place to deal with such global issues, and he rejected the legal theory put forth by the cities.

“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,” Judge Alsup wrote in a 16-page opinion.

The cities wanted the defendants — including BP, Chevron, ConocoPhillips, Exxon Mobil and Royal Dutch Shell — to help pay for projects like protecting coastlines from flooding.

But Judge Alsup said the issues would more properly be handled by the other two branches of government. “The court will stay its hand in favor of solutions by the legislative and executive branches,” he wrote.

Those solutions won’t come until climate hawks start voting consistently in elections, becoming an electoral force every bit as powerful as the NRA. Judge Alsup’s ruling is disappointing yet clarifying; if climate hawks conclude that the courts will never provide needed relief, that could provide the (clean) energy needed for growing political action on climate.

Climate litigation has proven to be profoundly difficult legal terrain, partially because the courts are reluctant to view the fossil fuel industry as malicious actors. In his ruling, Judge Alsup asserts:

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?…

[P]laintiff’s claims require a balancing of policy concerns — including the harmful effects of greenhouse gas emissions, our industrialized society’s dependence on fossil fuels, and national security…In our industrialized and modern society, we needed (and still need) oil and gas to fuel power plants, vehicles, planes, trains, ships, equipment, homes and factories. Our industrial revolution and our modern nation, to repeat, have been fueled by fossil fuels.

This echoes the argument made by Mississippi-based US District Judge Louis Guirola, Jr. in a 2012 ruling dismissing the similarly themed Comer v. Murphy Oil case:

It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants’ emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants’ actions against the benefits of the products they produce. Our country, this Court, and even the plaintiffs themselves rely on the products the defendants produce.

So long as that logic prevails in the courts, climate hawks are screwed in the courts. (James Hansen, take note.) The only path to a stable climate future lies in the consolidation of political power among climate hawks, not futile lawsuits. If that political power is not consolidated–and soon–our children and grandchildren will be the ones facing judgment.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.