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Judge’s Climate Change Science Day Misses the Point

By / 3.23.2018

Yesterday’s science day in a federal courtroom in San Francisco underscores the problem with the recent spate of climate change tort suits.  These lawsuits, which we recently wrote about in The Hill, seek to impose massive liability against fossil fuel producers for selling energy products, including home heating fuel and gasoline for cars, that many scientists have determined contribute to global climate change.  Rather than work through Congress and the Environmental Protection Agency on establishing sound policies, environmental lawyers are hoping to have a judge force the companies to reduce carbon dioxide emissions and pay for what they claim are climate change injuries.

On one hand, I admire Judge William Alsup, a Clinton-appointee who is hearing the case in San Francisco, for holding this science day.  He clearly believes in immersing himself into the subject matter of a case so that he can grasp the allegations and ask good questions.  He famously studied up on Java computer programming before hearing a dispute between Oracle and Google over the lines of code in the program.  In preparation for hearing the climate change case, he asked the parties to educate him on topics ranging from what caused the ice ages to the molecular reasons that carbon dioxide absorbs infrared radiation.

Climate change public policies, though, are different from private disputes over JAVA or other technologies.  They do not lend themselves to being resolved in litigation, where plaintiffs choose who to sue and trials are governed by rules of evidence.  The allegations here go to the role of fossil fuels in powering the world.  Our national energy policy involves balancing many complex political issues, including energy independence from foreign countries, accessibility of natural resources, affordability for American families and businesses, and environmental concerns, among others.

The last time climate change tort suits were brought, one of the cases (American Electric Power v. Connecticut) went all the way up to the Supreme Court.  During oral arguments, Justice Ginsburg rightfully expressed concern about setting up a federal judge, such as Judge Alsup here, to become a “super EPA.”  The Supreme Court dismissed the claims in American Electric Power, saying Congress and the EPA are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case decisions.”  Thus, in the end, it does not matter whether Judge Alsup can acquire the skills and knowledge to make these policy decisions.  Establishing America’s energy policy is not his job to do.

Phil Goldberg is the Director of the Progressive Policy Institute’s Center for Civil Justice and Office Managing Partner for Shook Hardy Bacon LLP in Washington, D.C.