27 Jun 2018 Most Likely Winner in Energy Industry Lawsuits: Trial Lawyers

Several city and state officials across America are filing lawsuits against the energy industry for alleged environmental damages to their communities. But National Center Senior Fellow Horace Cooper calls their arguments “flawed and ridiculous.”

In the end, the only people getting rich may be the trial lawyers.

In a new Washington Times commentary, Horace – a former constitutional law professor at George Mason University – wrote about the lawsuits:

If these arguments were answers on a law school exam they wouldn’t even garner a D-. If I were Mayor Bill de Blasio in New York or officials in California, Colorado and Louisiana, I’d caution them not to run to the bank just yet.

Horace highlighted the lawsuits filed by California officials in a previous Times commentary and an appearance on the Fox Business Channel. He called the actions of these officials “blatant hypocrisy” because they simultaneously could not make a case that energy companies were undoubtedly the cause of climate-related damage while downplaying environmental concerns in dealings with potential investors interested in their communities.

In his new commentary, Horace noted that additional legal threats to the energy industry similarly lack credibility. For example:

Take the case in Louisiana. Trial lawyers there are preparing lawsuits blaming coastal erosion on decades-old drilling operations which have long since ceased. Their fanciful narrative holds that oil drilling in the Pelican State’s delta region, which started in the 1930s, is solely responsible for swaths of lost landmass. Never mind that they haven’t produced a shred of evidence linking drilling with coastal erosion.

Or mind you, they ignore the fact that energy producers were encouraged by state officials to explore for energy precisely to develop local economies. The Army Corps of Engineers along with state regulators approved, licensed and heavily regulated the very projects over which the trial lawyers now feign dismay.

Now for the legal strategy. You won’t hear the Louisiana trial lawyers utter the words “climate change” for fear of moving the venue to federal courts, losing their unique home field advantage where undue influence in political and judicial realms are legion. Rather than focus on using legitimate legal arguments, the trial lawyers are confident that a Louisiana judge will hand them the jackpot they seek…

The reality is that coastal erosion in Louisiana is multi-faceted. Because the Army Corps of Engineers built the levee system along the Mississippi River to diminish the threat of flooding in populated areas, the levees allow coast-maintaining silt to bypass wetlands and dump into the Gulf of Mexico. Hurricanes, tropical storms along with natural erosion are also large contributors to land loss in Louisiana, as is human activity.

Then there’s the hypocrisy, which Horace explained as the tip of a flawed gambit:

Sometimes politicians haven’t even paid attention to what they’re saying in court versus what they say in public. In New York City, Mr. de Blasio champions additional residential development along the city’s waterfront when talking to investors, yet his lawsuit against energy companies describes New York as becoming the new lost city of Atlantis. Which is it?

In the case of both financially mismanaged cities, the quest for billions blinds them to their hypocrisy. And both cases are likely to run into the buzz saw of Supreme Court precedent. As recently as 2011 in American Electric Power v. Connecticut, the Court ruled that the Clean Air Act pre-empts public nuisance torts against corporations for greenhouse gas emissions.

Climate policy falls under congressional jurisdiction, which means ultimately related litigation would be remanded from Louisiana to federal courts, which are immune to shady political practices and will likely dismiss much of the “junk science” peddled by the litigants. Frankly, the only winners here will be the trial lawyers’ firms that jack up million-dollar billing fees on cases in the hope that one of them land them a pot of gold.

To read Horace’s new Washington Times commentary – “A Multi-Billion Dollar Shakedown of American Energy Companies” – in its entirety, click here.