Real Clear Energy | Op-Ed | July 2, 2018

While many legal observers are busy dissecting the recent rulings of the U.S. Supreme Court, those concerned with the misuse of the judicial system for political purposes are celebrating a lower court ruling thousands of miles away.

Last Monday, U.S. District Judge William Alsup dismissed lawsuits brought by the cities of San Francisco and Oakland against Chevron, Exxon Mobil, and three other oil companies that had sought monetary damages for the effects of climate change.

The suits, which accused “Big Oil” of creating a public nuisance by producing fossil fuels they “knew” would harm the environment, are part of a larger strategy by numerous public entities to wrangle billions of dollars from the private sector to balance their bloated budgets and fund a variety of pet projects. Several other local governments in California, Washington, Colorado, and New York are also suing “Big Oil.” The lawsuits claim oil companies are liable for the cost of infrastructure projects aimed at preventing damage from rising seas levels and the other environmental problems allegedly caused by global warming.

The use of frivolous litigation to shake-down private companies is, of course, nothing new. In fact, some of the attorneys suing “Big Oil” are the same lawyers who successfully extracted massive settlements from the tobacco companies back in the 1990s. The playbook is well known: find a public health crisis; target the deep pockets of the manufacturers of a legal product; and extort enormous settlements, while also imposing strict new rules on legal activity.

Recently, hundreds of cities, counties, states, and Native American tribes have brandished this strategy against pharmaceutical companies, claiming the industry is liable for the public health costs that have arisen from the opioid crisis. Like the lawsuits against “Big Oil,” suits against “Big Pharma” are a desperate attempt to fill government coffers while simultaneously trying to convince voters that politicians are doing something to solve a significant public problem.

Unfortunately, when it comes to this sort of regulation by litigation, it is the American consumer that pays the bill in the form of higher prices, whether at the gas pump or at the pharmacy. Thankfully, the federal district court in California rejected San Francisco’s and Oakland’s attempt to leverage the courts to regulate the private sector. In his 16-page ruling, Judge Alsup reprimanded the cities for abusing the court system for political gain.

Although Judge Alsup acknowledged the “scientific consensus” that fossil fuels have “materially” accelerated climate change, he noted that fossil fuels also have impacted society in positive ways that often go unaccounted for:

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.

The doctrine of “separation of powers,” he continued, requires that courts stay out of policy decisions. It is not the job of the courts, Judge Alsup noted, to “balance the social utility against the gravity of the anticipated harm.” Rather, it is the job of the legislative and executive branches of government to consult the stakeholders and to weigh the positive and negative effects of commercial behavior before deciding to take legislative or regulatory action.

Climate change and the opioid crisis are simply too complex to be addressed by the courts in an adversary system. And courts must defer to the other co-equal branches of government to solve them.

Judge Alsup’s ruling in this climate case is a major blow not only to the cities of San Francisco and Oakland, but to all state and local governments that seek to use frivolous nuisance lawsuits to stuff their coffers and punish perfectly legal — albeit, perhaps politically unpopular — activity.

Let’s hope that others who seek to abuse the judicial process for political gain get the message.

Jennifer C. Braceras is a lawyer and senior fellow with the Independent Women’s Forum.