Last week Boulder leaders followed California and New York local governments in suing oil companies about climate change. Their lawsuit is based on a dubious legal premise and is not a productive way to reduce greenhouse gas emissions.
Boulder blames defendants ExxonMobil and Suncor for over $100 million in climate damages — everything from flood control and wildfires to road maintenance, landscaping and “reduced employee efficiency.”
One of Boulder’s attorneys said the suit is patterned after the 1990’s litigation against tobacco companies. As Colorado’s Attorney General at that time, I joined with other state Attorneys General to hold the major tobacco companies responsible for their aggressive marketing, phony science and outright lies designed to deceive Americans about the dangers of smoking. As one of the negotiators, I helped bring about the $206 billion national tobacco settlement.
About the only thing that “Big Tobacco” and “Big Oil” have in common, however, are the deep pockets of the defendants. Let me explain some important differences.
First, the connection between cigarette manufacturers and smokers was straightforward. Even at the height of tobacco use, only a few major companies produced tobacco products. Tobacco directly affected smokers.
On the other hand, nearly everyone participates in generating greenhouse gases, even Mother Nature. The relevant impact is not at the point of usage, but distributed worldwide through complex effects on weather. The world reached its current levels of atmospheric greenhouse gases because of countless large and small decisions by governments, companies in different industries, and consumers. Is your neighborhood gas station franchisee responsible for emissions? Are utilities to blame because they moved away from nuclear energy? Car makers for marketing non-electric vehicles? What is our own individual liability, since annual greenhouse gas emissions amount to almost 20 tons per person? Yet Boulder is suing only ExxonMobil and Suncor, and asking them to pay triple the amount of any climate change damage Boulder suffered.
A second difference is that tobacco use is not an integral part of society in the same way as energy, so it is harder to argue energy production is an unreasonable activity or a nuisance. With sufficient motivation, Americans can put out that last cigarette, but no amount of motivation can remove every need to heat our homes, put the kids on a school bus, rush the injured to a hospital, or fly to the next business meeting. In Boulder’s world view, Suncor and ExxonMobil should have stopped producing and marketing their products when climate change concerns surfaced in the 1980’s. But instead, oil and gas companies created jobs, enriched Americans and strengthened our national security.
The “solution” in tobacco litigation was comparatively simple: force the companies to reform their marketing practices. The public policy goal was also clear: get people to stop smoking, or at least to understand the risks.
Climate change litigation has a vastly more ambitious goal: using the courts to shift transportation and power generation toward a low-carbon future. The more complex the issue, the less well suited it is for courtroom resolution. A patchwork of litigation by municipalities should not determine America’s path forward on energy and climate.
An example of the complexity of energy policy is the success of hydraulic fracturing, which creates good Colorado jobs while increasing natural gas production. With gas replacing coal in power generation, greenhouse gas emissions in the United States have decreased. Natural gas also facilitates wind and solar power by filling in their down times.
One aspect of the tobacco and climate change litigation is the same: contingent-fee attorneys are seeking huge fees. Some law firms that sued tobacco companies for states came away with billions of dollars in fees. One of these firms is now representing San Francisco and Oakland, reportedly with a contract giving them almost 25 percent of any money the cities might win. The firm is clearly seeking another multibillion-dollar windfall. Boulder’s attorney fee agreement is for 20 percent of any award.
Energy policy formation should be about scientific understanding, technological advancement, consumer welfare, and economic progress. Boulder’s climate change goals are much more likely to be accomplished through its outstanding research laboratories at the University of Colorado and the nearby National Renewable Energy Laboratory than in a courtroom.
Gale Norton was Colorado Attorney General 1991-1999 and Secretary of the U.S. Department of the Interior 2001-2006.
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