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The 'Public Nuisance' Climate Litigation Scam
Ambulance-chasing lawyers abuse public nuisance to justify billion-dollar climate litigation.
Trial lawyers are an innovative bunch. If there’s no evidence to support their ambulance-chasing lawsuits, they just ignore the facts. And if they have no legal basis for the litigation, they simply invent one.
There may be no better example of this chicanery than the onslaught of “public nuisance” cases filed by US cities and counties against energy companies seeking damages for the impacts of global warming. Similar litigation is gaining momentum across the border in Canada, where activist groups are raising money “to pay a team of lawyers to bring a class-action lawsuit to cover the costs of climate change.” The outcome of the cases in America will provide precedent for Canadian courts.
These baseless lawsuits cost taxpayers millions of dollars, abuse the legal system and discourage innovation—all so lawyers and politicians can profit from contentious social issues in need of real policy solutions.
An abused legal doctrine
Public nuisance statutes are designed to prevent “interference with a right held by the general public,” including activities that jeopardize the health and welfare of Americans. Historically, they were used to prevent specific negative externalities associated with pollution, such as sewage discharge into waterways, and domestic disturbances like prostitution and gambling.
Today, though, public nuisance is the fuel for scientifically and legally dubious climate litigation, such as this recent complaint filed by Multnomah County, Oregon, against several major oil producers. The plaintiff’s allege that the region was “scorched by the most extreme heat event in its history” in 2021. This three-day weather anomaly “boiled the county,” forcing it to expend significant resources medically treating residents and restoring public property.
The defendants are to blame, the complaint asserts, because they executed a “scheme to rapaciously sell fossil fuel products and deceptively promote them as harmless to the environment.” The cost to make amends for this offense? $51.5 billion if the county prevails. The plaintiff’s complaint is transparently absurd, and we only have to look to decades of mainstream climate science to see why.
Weather-related health and economic losses declining
As the global average temperature has risen, deaths attributed to extreme heat have declined. “Over the past 35 years,” according to a 2003 study, “... mortality during heat stress events has declined despite increasingly stressful weather conditions in many urban and suburban areas.”
Cold is (and always has been) the greatest climatic threat to human health and welfare. Between 2000 and 2019, extreme temperatures were associated with a little less than 10 percent of global mortality, a 2021 study in The Lancet concluded. Most excess deaths were “linked to cold temperatures (8.52%), whereas fewer were linked to hot temperatures (0.91%).” The study indicates “that global warming might slightly reduce the net temperature-related deaths …” the authors added.
Weather-related economic losses have also declined significantly in recent decades. As one well-known study reported in 2018, “since 1990 both overall and weather/climate losses have decreased as [a] proportion of global GDP…”
The lawyers tried to end-run this robust evidence by citing a study conducted after Oregon’s transient temperature spike. It found that human-induced climate change “does make extreme events like this possible in the current climate and study region,” but the researchers were far more conservative than the lawyers who quoted their work. “Follow-up research will be necessary to investigate the potential reasons for this exceptional event,” they concluded.
The study’s cautious analysis helpfully illustrates why climate scientists are so hesitant to link specific weather events to global warming. “... [W]hat happens locally, or over short periods of time, is not necessarily representative of what’s happening nationally and globally,” Yale University’s Center for Environmental Communication explains.
There is no pattern to suggest that human-caused climate change is increasing weather-related health and economic impacts, and thus a giant scientific gap in Multnomah County’s complaint against the energy industry.
Rigging the legal system
The problems with these cases go far beyond ignorance of science to gross abuse of the legal system. Reading press coverage of these lawsuits may lead the public to believe that they’re an organic response from municipalities affected by climate change. They are nothing of the sort.
The truth is that politically connected trial lawyers and environmental groups, with the generous backing of billionaires like Mike Bloomberg, are recruiting these communities as clients and filing suit in ideologically sympathetic state courts.
In some instances, they’re even placing staff in the offices of state attorneys general. These “legal fellows” are then tasked with facilitating litigation against energy companies, an arrangement that is nothing short of corrupt. “State AGs for Rent,” The Wall Street Journal observed, as “Privately funded litigators wield state police power.”
The case in Oregon is but one example of the many copycat lawsuits filed by small-time tort lawyers angling to bilk energy companies out of massive sums. The three firms involved in the Multnomah County suit specialize in personal injury (asbestos, baby powder), Social Security and worker’s compensation claims. Their shallow grasp of environmental law is plainly reflected in their vacuous complaint.
At least 20 similar lawsuits are pending in state courts around the United States. It remains to be seen if these cases will succeed, but at least one federal judge has dismissed the public nuisance rationale as groundless. “The scope of plaintiffs' theory is breathtaking,” wrote US district judge William Alsup in his 2018 dismissal of a suit filed by the city of Oakland, California. “It would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the combustion of fossil fuels contributed to the phenomenon of global warming.”
In effect, then, these lawsuits would empower judges and juries in individual states to punish companies for engaging in an activity—oil and gas production—that is legal internationally for a global phenomenon—climate change—based on local ordinances that have never been used for such a purpose. “Breathtaking” doesn’t begin to cover the abuse of power and greed this scheme entails.
None of this vital context comes through in most mainstream reporting on these cases, though. For example, NBC News “science reporter” Evan Bush did little more than regurgitate the plaintiff’s complaint in his coverage of the Multnomah County case. Unqualified, predatory lawyers abusing an unrelated legal concept and distorting science? Bush spent not one word on those details—though he did report that the heat wave “caused baby birds to jump to their death.”
So much for “being right, being accurate, being fair and having the utmost integrity,” the standards NBC supposedly sets for its journalists.
Fossil fuels power civilization
The other side of the equation in this dispute is “social utility,” judge Alsup noted. Fossil fuels are so widely used because they are abundant, inexpensive sources of energy that make civilization possible. “We depend on those fuels to heat our homes, run our vehicles, power industry and manufacturing, and provide us with electricity,” the National Academies of Science, Engineering and Medicine states unequivocally.
Like every other plaintiff in these cases, Multnomah County is totally dependent on the fossil fuels it wants to blame for its 2021 heat wave. Its growing economy employs thousands of people in industries as diverse as agriculture, manufacturing, tourism and health care. Not a single one of these sectors or its customers is untouched by the benefits of fossil fuels. Even the electric cars that have proved to be enormously popular in Oregon couldn’t be manufactured or charged without coal and natural gas.
Nevertheless, the county wants to punish the firms that supply the energy it couldn’t live without. If anything undermines this legal crusade, it’s the plaintiffs’ shameless hypocrisy.