The Wall Street Journal has an editorial decrying the emergence of “climate litigation.” The article, which makes no attempts to be neutral, lumps together trial lawyers and green pressure groups, suggests that such litigation is bad for business, and is based on “nuisance laws.” Far more significant is the assertion that this is a back door to changing policy since Congress and the White House have failed to legislate measures that satisfy the green lobby.
Mull over that one for a moment. Mr. Blumenthal isn’t suing to right a wrong. He admits that he’s suing to coerce a change in policy no matter what the public’s elected representatives choose.
No doubt, there is truth to each of these criticisms of climate litigation. But they are all also irrelevant.
Bad for Business? So What?
Yes, climate litigation might be bad for some businesses – particularly the more polluting ones. But it would also be good for others, such as businesses involved in improving energy efficiency, renewable energy generation and the like. But regardless, what if such litigation was bad for business – should we then disallow it? The US Clean Air act, when it was enacted in 1970, was also no doubt seen as bad for business. But hardly anyone would argue that it should not have been enacted on those grounds. So, “bad for business” does not qualify as a potential shield against such litigation.
What is a Nuisance Law?
What about the suggestion that such litigation is a “nuisance”? But who gave the WSJ the right to label certain laws as a nuiscance? Certainly not the citizens of America. In fact, the very term “nuisance laws” is an oxymoron. Laws are not a nuisance – they exist to provide citizens protection of their rights. And due process exists to ensure objectivity in the deliverance of justice, as far as possible.
Take the case of the Tobacco industry, which was sued by hundreds of individuals from the 1950s to the 1990s. No doubt such litigation was both “bad for business” and a “nuisance” for some. But it led to the Tobacco Master Settlement, a USD 206 billion settlement, and dramatically changed views on smoking across the US and the world. Interestingly, no individual “nuisance” lawsuits ever won in court, a validation of the checks and balances of the American legal system and the high burden of proof required of plaintiffs.
Given this history climate skeptics and the WSJ – “if that’s not redundant” – should actually welcome such lawsuits. They would allow both sides of the story to be heard in open court and an objective assessment can then be made of the link between CO2 emissions, global warming, and its effects on cities or ecosystems. Indeed, the burden of proof would be on the plaintiffs from the “green lobby” – so if the skeptics really believe there is no global warming they should hardly worry about such lawsuits. Just as in the case of the tobacco industry, no definitive link may be found for some time – but it may still lead to a better understanding of the issue.
Regulation through Litigation?
Finally, what of the criticism that such litigation arrogates power from Congress to the courts? This is indeed correct. Theoretically, the legislature legislates, the executive “executes” and the judiciary serves as the last word on the matter.
However, this broad principle cannot be taken as absolute because there has always been an overlap of power across these arms of government. And that overlap exists because the legislature is not a perfect representation of the people’s will – insofar as it is not direct democracy and is often biased by private lobby groups. Thus, the potential arrogation of some power to the judiciary is understandable.
Furthermore, there is a long tradition of regulation through litigation including by the US government itself (United States vs. Microsoft Anti-trust lawsuit, or lead paint litigation). At issue here are not the outcomes of these efforts but the principle of whether individuals and private groups can sue. If the government can, then why not individuals?
Finally, regulation through litigation, while having its own set of problems, also provides benefits. These are summarized well by Tim Lytton in the Texas Law Review:
(1) framing issues in terms of institutional failure and the need for institutional reform; (2) generating policy-relevant information; (3) placing issues on the agendas of policy-making institutions; (4) filling gaps in statutory or administrative regulatory schemes; (5) encouraging selfregulation; and (6) allowing for diverse regulatory approaches in different jurisdictions.
The WSJ editorial argues that litigation against high emitters of CO2 is both frivolous and sets and a dangerous precedent for an anarchic world where everyone can sue everyone. Yet, a long history of similar litigation suggests that both governments and individuals have used litigation in the past to raise issues that the legislature failed to do so. Society is no worse, and some may argue, is better for such litigation. Despite the costs involved, the principle should simply be to let the truth prevail – rather than avoid facing it because it is “bad for business.”