Lawfare v. Energy: Litigation as Legislation
November 4, 2024Presented By:
SPECIAL SERIES:Lawfare v. Energy
The precise role of the civil lawsuit in a free society governed by the rule of law often escapes our attention. Though lawsuits can hassle, entangle, and even impoverish the parties caught up in them, their exact function is noble: Civil suits are the mechanism for enforcing a set of communal rules about fairness and prosocial behavior.
While there are limitations on the process at every step of the way, which take on jargon-inflected names like “standing” and “personal jurisdiction,” the crucial limitation built into the Anglo-American legal tradition, obvious to those who stop to consider it yet obscured by the trappings of legal doctrines, is that lawsuits exist to regulate violations of rules that already existed – even if they are not crimes, and even if they were not spelled out in legislation.
Though ambitious lawsuits often allege novel theories that seek to extend existing laws’ application to new scenarios – thus bringing the rules in line with what are arguably communal norms or principles – the essence of the legal argument, as opposed to the political argument, is that it is meant to be focused on the past. The conduct which ostensibly caused some kind of damage, of course, is in the past. But the law, further, must have predated the conduct. Its subject is what has already been settled, decided, and can be known. The legal system addresses the past; legislation addresses the future.
The Supreme Court has, in recent years, reinvigorated this basic element of the rule of law in constitutional cases by turning to a mode of reasoning sometimes called traditionalism. In high-profile cases, the Court has attempted to answer difficult questions about the First, Second, and Fourteenth Amendments (among other constitutional provisions) by pointing to how Americans long understood those provisions and their application to the issues now before the Court.
At a high level of generality, the Court has reasoned that the legitimacy of a given interpretation of a long-standing legal provision is reflected in whether the American people have traditionally acknowledged such an interpretation as binding law. So, for instance, interpreting the First Amendment to mean that a state employee cannot recite Christian prayers while on the job would be suspect, because we have a long tradition in this country of allowing such religious expression. The law – that is, the way the rules bind us and require certain behaviors of us – does not change unless changed by legislative means or constitutional amendment.
This approach has the underappreciated benefit of allowing tradeoffs between competing legitimate concerns – such as religious liberty and freedom from coercion – to reach an organic, emergent compromise. It prevents judges from “legislating from the bench” or projecting their understanding of the proper balance between competing interests recognized by the law after the fact. In nearly all legal matters, such a mode of reasoning avoids the difficult and essentially legislative task of fashioning a standard of behavior for law-abiding parties, which is sensitive to the particularities of each case and does not categorically privilege one kind of interest over another.
Yet percolating in state and lower federal courts are cases that arguably represent just the opposite. A species of ambitious litigation – sometimes modified by words like “impact,” “social,” or “movement,” or simply dubbed a form of “lawfare” – approaches social problems by asking judges to recast the standards defining legally protected behavior after the fact.
Chief among these lawsuits are complaints alleging that massive energy companies have misled the public about the environmental harms their products could cause. What makes this wave of suits arguably lawfare is that the defendants are often very unpopular, as highly profitable beneficiaries of the earth’s natural resources that have largely been blamed for climate change.
What makes it more questionable, though, is that these suits implicitly demand that energy companies retroactively balance the benefits and harms of their business in a way to meet current sensibilities they could never have anticipated. No one argues that ExxonMobil or Shell Oil produces only harm and is of no societal value. Indeed, the plaintiffs themselves continue to buy, distribute, and regulate fossil fuels, recognizing their utility. The argument, which California among other plaintiffs has brought to the courts, is both more nuanced and potentially more insidious: that the energy producers should bear the burden, after the fact, of weighing and publicizing the costs and benefits of doing business.
What is Big Oil doing wrong? California Attorney General Rob Bonta describes its alleged misconduct in a press release announcing an amended complaint, which “includes additional examples of recent false advertising and greenwashing conduct by the oil companies.” The core claim is that the defendants “engaged in a decades-long campaign of deception regarding the reality of climate change and the connection between combustion of fossil fuels and climate change, resulting in climate change-related harms in California.” Part of that campaign has been “falsely or misleadingly portraying their fossil fuel products and themselves as environmentally friendly, climate-friendly, or otherwise less environmentally damaging than they really are – these companies portray themselves as being part of the climate solution rather than a primary cause of the climate crisis.”
The lawsuits aim to hold these companies financially accountable for the costs of climate change, such as rising sea levels, wildfires, and other environmental hazards, which these jurisdictions argue they are now forced to address. Cities like San Francisco claim they face billions of dollars in costs related to adapting their infrastructure to mitigate climate impacts, including building seawalls, reinforcing water systems, and handling extreme weather events.
California has famously plaintiff-friendly anti-deception laws. Those laws may alone swing this case in the plaintiffs’ favor. But it is worth examining what such actions against massive producers of essential goods and services portend for our legal system and its relationship to our political system and economy.
At first blush, this is merely the latest in a long line of similar legal cases. Trying to achieve policy goals, even lightning-rod social goals, through litigation is nothing new. Indeed, impact litigation in this country has a noble history.
Some noble examples came from civil rights-era equal protection cases. Litigated a century or more after the ratification of the Fourteenth Amendment and its guarantee of “the equal protection of the laws” for all, plaintiffs sued to bring state laws in line with our constitutional principles. Brown v. Board of Education is famous for announcing that segregated public schools violated the Constitution, though “separate but equal” had been considered constitutionally valid for decades. Loving v. Virginia determined that statutes banning interracial marriage had no purpose beyond “invidious racial discrimination,” though such laws, too, had stuck around for decades after the equal protection guarantee became law.
Yet there is a clear distinction between the arguments that gave us those now-canonical holdings and the current wave of impact litigation. Brown and Loving enforced constitutional rights by expanding the limits of constitutional principles, which already had solid grounding in the law. If the promise of equal protection is a balance between providing equal treatment regardless of race and the liberty of individuals to discriminate as they see fit, there was no articulable case for racial segregation aside from the good of segregation itself. There is thus a distinct kind of legal reasoning to these cases: States and localities had been violating what they knew to be their responsibility all along – with no plausible deniability that they were promoting a distinct social good and were being held responsible for improperly balancing them in good faith.
The Big Tobacco lawsuits that proliferated in the 1990s provide the conceptual bridge to our new era of using legal means to achieve legislative goals. Those lawsuits held massive companies profiting off unhealthy products to account for pushing known poison on an uninformed public. They thus create a natural precedent for today’s environmental litigation.
Plaintiffs have drawn parallels between these climate lawsuits and the tobacco litigation of the 1990s, where cigarette manufacturers were sued for knowingly hiding the risks of smoking. Just as the tobacco industry eventually settled and paid billions in damages to states, these climate lawsuits seek similar accountability from oil companies, arguing that public deception on such a massive scale warrants legal consequences, even if the product remains legal. Tobacco suits were different in kind from the anti-segregation lawsuits and are similar in kind to environmental impact litigation.
But tobacco and fossil fuels are different in degree to an extent that may alter the calculus. More precisely, they differ in the degree of social benefit to the product. Cigarette litigation presented a lopsided case because the underlying product provided a serious burden on public health, health care, and knock-on economic effects without any obvious benefits. That makes it an easy case for social-responsibility standards: Why didn’t you tell consumers you knew this addictive product that serves no counterbalancing positive function would disease them and kill them before their time?
By contrast, fossil fuels remain not just legal but necessary, and these same jurisdictions continue to rely on them for energy. Suing companies for selling an essential product – whose centrality to all kinds of important, even progressive social goals, like alleviation of poverty and keeping people warm in the winter – is a bit unusual. There is something eyebrow-raising about a state suing a company for deceiving consumers while the state itself remains a massive consumer and continues to permit, regulate, and tax the sale of oil and gas. Can California really claim that the fossil-fuel market would be different today, that fossil fuels would be less ingrained in our economy and less important to achieving those important effects, if the major oil companies had behaved differently?
Another way of putting the question: Did the corporations really cause this? Harm from cigarettes was easily traceable to Big Tobacco. They produced the products for the people who got sick from them. Mississippi Attorney General Mike Moore, who famously spearheaded the effort against Big Tobacco, correctly stated the legal aphorism that controlled that case: “You caused the health crisis, you pay for it.” That is a clear, if shorthand, statement of how the law requires a balance of harm against benefit, and who must bear the benefit of making that calculation. Causation is one legal path for examining how responsible a defendant ought to be considered for an outcome where the harms outweigh the benefits.
It should give California pause that its causation analysis is sure to prove a weak point as it tries to make its case, as opposed to the undifferentiated whole of climate change, which will come up in the court’s causation analysis. Not only does California continue to play a massive role in moving fossil fuels from producer to consumer, but Earth’s ecosystem is far more complex and less understood than human physiology. So, while it was easy to study the role of cigarettes in producing poor health outcomes, it is extremely difficult to show that oil companies’ actions are responsible for rising sea levels. Most carbon dioxide pollution has, for the last several years, come from China. Yet California seeks to hold these fossil-fuel producers – not anyone else involved in facilitating fossil-fuel consumption, like the state of California itself – responsible for specific harms, on the theory that these companies should have been more upfront about what harm its product could cause as part of an undifferentiated whole of carbon emissions.
What is new, then, is expanding the remit of corporate responsibility to require them to produce goods that it is conceded remain useful – but to do so “better.” No one thinks these companies are being entirely harmful. The argument is just that the corporation is somehow responsible for better balancing the public messaging about harms and benefits, though they rarely do business with the general public. Yet there’s no indication that the state would behave any differently if it knew – which it long has – about the relation between fossil fuels and climate change.
Normally a complex question of trading off policy benefits and burdens occurs through legislation, not litigation, because it represents a choice about priorities in public policy. But it is hard to legislate. And the reason getting energy policy right is so difficult is that several legitimate – lawful, defensible, socially useful – positions represented by interest groups come into conflict.
Turning such a question into a matter for the courts projects onto the past, and holds companies responsible for upholding, our present understanding of the proper balance between poverty alleviation and environmental degradation – an impossible task. That is why these lawsuits take on the character of a kind of regulatory overreach, bypassing democratic processes and burdening courts with cases that aim to achieve policy changes disguised as existing legal standards through judicial decisions rather than legislation.
The true test case defining the boundaries of this balance between social good and social harm will be lawsuits over social media. In new litigation against TikTok and other platforms, known harmful effects on youth mental health have to be balanced against colorable benefits like social connection and entertainment. Whether TikTok knowingly addicted young Americans to a harmful product or simply provided something with its own set of benefits and detriments will be a difficult question for courts to answer.
Perhaps the conclusion such courts ought to reach is that that impact-litigation effort, too, is misguided, and legislation, rather than lawsuits, to prevent future social-media-driven harms is indicated. Or perhaps state attorneys general will muster enough evidence to prove that TikTok suckered young people, who are not legally competent to make informed decisions, into engaging in anti-social behaviors bad for their health. The persistent difficulty of making such judgments should only serve to illustrate how uneasy we ought to be with lawsuits, like the anti-fossil-fuel effort, that do not feature those aspects. Where state policymakers, not children, are involved as buyers and consumers, and the harms are nebulous and difficult to pin on the defendant – is that where our prosecutorial energy ought to be expended?
Source: https://www.realclearpolitics.com/
