Local Governments Should Say No to Misguided Public Nuisance Lawsuits

Tim Shaw
Mayor of La Habra, California.

This past Thursday, I had the opportunity to participate in a roundtable discussion to address the public nuisance-based climate lawsuits in California. The event, held just following the one-year anniversary of the first misguided lawsuits in our state, included mayors from California cities and representatives from the California Manufacturers & Technology Association and the Manufacturers’ Accountability Project.

As a mayor, I am deeply concerned about the effects these lawsuits could have on California’s economy and the threats they could pose to manufacturing in our region. I am frankly appalled that any local government would endorse these kinds of lawsuits, which pose great danger to jobs and investment in California. Let me explain why.

With the help of for-profit trial attorneys, a number of California governments, notably San Francisco and Oakland, have filed so-called public nuisance lawsuits in an attempt to extract major paydays from energy manufacturers. Why? Because climate activists have failed to gain meaningful traction for their cause through the lawmaking process, so they hope to use the courts to make manufacturers financially responsible for climate change. They also successfully convinced San Francisco and Oakland that such lawsuits would bring much-needed revenue to those cities.

Unfortunately, these lawsuits are based on feeble legal theories that wilt under close scrutiny, a fact illustrated by Judge William Alsup of the U.S. District Court for the Northern District of California in late June when he dismissed the lawsuit brought by San Francisco and Oakland against major energy manufacturers. Alsup’s ruling was a resounding blow to the very notion of public nuisance lawsuits and particularly to Matt Pawa and Hagens Berman, the attorney and firm at the center of these lawsuits. As Judge Alsup (incidentally a Clinton appointee) stated, “You’re asking for billions of dollars for something that hasn’t happened yet and may never happen to the extent you’re predicting it will happen.”

As Judge Alsup also added, an issue as monumental and as complex as climate change should be decided by the legislative and executive branches, not by the court system. This belief was also argued by 15 state attorneys general in an amicus brief filed in April, in which they urged Judge Alsup to leave climate change policy where it belonged: with elected officials. Should public nuisance lawsuits be successful, they argued, any entity using fossil fuels, including the State of California and the City of La Habra, could find themselves in the crosshairs of similar lawsuits.

Fortunately, momentum is gaining for this argument.  Even more recently on the East Coast, a federal judge in New York City, John Keenan dismissed Mayor Bill de Blasio’s similar climate lawsuit on July 19 aimed at energy companies.

In his dismissal ruling, Judge Keenan wrote, “climate change is a fact of life, as is not contested by Defendants. But the serious problems caused thereby are not for the judiciary to ameliorate.  Global warming and solutions there to must be addressed by the two other branches of government.”

Legal problems aside, these lawsuits are highly dangerous to California and to communities like La Habra. By threatening manufacturers, public nuisance lawsuits endanger a sector with a long and rich history in our state, accounting for 11.1% of total economic output and employing well over a million Californians. They also seek to punish a manufacturing sector that has worked hard to lower its greenhouse gas emissions by more than 10 percent since 2005. Manufacturers are part of the solution to climate change, not the problem.

The reality is that such lawsuits really have only one beneficiary: trial attorneys. That is clear in records obtained obtained by the Manufacturers’ Accountability Project that show Hagens Berman stood to rake in an astonishing 23.5 percent payday had the firm won its lawsuit in San Francisco. Trial attorneys stand to collect hundreds of millions in fees for a misguided legal approach while local governments see their success undermined and growth discouraged as potential investors view California as overly litigious.

To date, no trial attorney has ever won a public nuisance lawsuit regarding climate change, a fact pointed out by Judge Alsup in his recent ruling. For the good of California communities like mine, let’s hope they never do. Local leaders must realize that such lawsuits don’t hold any real benefit when it comes to climate change, but they do offer tremendous potential profits for trial lawyers and massive risks for our regional economy. It’s time to say no to these lawsuits on a local level and put a stop to the foolishness.

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