SEATTLE (Legal Newsline) - King County, Wash., has withdrawn its federal lawsuit seeking hundreds of millions of dollars from energy companies for climate change damages.
A three-page notice of voluntary dismissal entered late last month gave no explanation for the county’s quiet retreat. Attorney Steve Berman of Hagens Berman Sobol Shapiro LLP, counsel for the county working on a contingency fee, told Legal Newsline that he did not wish to comment on the withdrawal.
Phil Goldberg, special counsel for the National Association of Manufacturers (NAM), said the county could have realized that its lawsuit was not useful in the fight against climate change and not legally grounded in American tort law — but that the true intention remains unclear.
The plaintiff could also be “trying to repackage [the lawsuit] and file it in a different way,” Goldberg said.
“But either way, the bottom line is that no matter how this lawsuit is packaged, it’s fundamentally the wrong way to go about dealing with climate change and its impact on local communities,” the attorney told Legal Newsline.
King County was just one among two dozen state and municipal plaintiffs to have filed similar suits at the federal level since 2017.
The county alleged in their suit that major energy companies created a “public nuisance” by causing climate-related changes such as rising sea levels. Its defendants included Chevron Corp, BP Plc and Exxon Mobil Corp.
Hagens Berman has been the counsel behind multiple such climate change damages cases, including cases with Oakland and San Francisco as plaintiffs. Most cases are in a holding pattern while courts decide whether they will be held in state courts, which offer plaintiffs a much better chance of success, or federal.
These cases are going about the issue all wrong, Goldberg said.
“What we need to be doing is doubling, tripling and quadrupling our investment in the new technologies that we need so that we can live in the modern era while not impacting the climate, and no lawsuit is going to do that,” Goldberg explained. “The only way we can do that is to innovate the technologies we need to use and source our energy much more sustainably than we're doing today.
“The people who are behind this lawsuit are part of a national campaign effort to use the courts as a way to drive energy policy and, in their words, make energy much more expensive for the rest of us, and that’s not good energy policy. That’s not going to help families and businesses in this country compete and be able to sustain their way of life.”
Attorneys and experts across many sectors are watching to see if a state-level complaint surfaces in the weeks after the county’s federal withdrawal, since climate activists have seen a history of failure in federal court. In 2018, three climate change lawsuits were dismissed by federal district judges in New York and California, including two by Judge William Alsup, a Clinton appointee.
Decisions about how to modify national energy policy to address climate change are critical. Many agree that those decisions need to be made at the legislative and regulatory level, not in the courtroom.
In those three dismissals, the federal judges stated that climate change should be addressed by the executive and legislative branches, not the judicial branch.
In a 2011 Supreme Court climate change case, late Justice Ruth Bader Ginsberg said the same.
“Ten years ago, they tried this exact same litigation, just packaged slightly differently, and the Supreme Court said that it’s not the role of the court to decide national energy policy,” Goldberg stated. “So they’ve been trying to repackage these lawsuits in a way that they hope the courts won’t realize they’re doing the same thing as they were doing 10 years ago.”
These plaintiffs are desperately seeking attention at the state level to circumvent the clear precedence in federal court, Goldberg said.
Emails uncovered through FOIA requests to various universities and government offices involved in pushing climate change lawsuits nationwide show the focus is on state courts and sympathetic judges.
Should King County file in state court, it may likely follow the model set forth in other states like Massachusetts and Minnesota, where the attorneys general have brought forth complaints under state law and argue to keep the cases in state court.
But Goldberg says policy makers should be focusing on what needs to be done nationally and internationally to address climate change.
“How are we going to stop climate change from happening, and how are we going to mitigate the impact of climate change? Both of those are inextricably tied to national energy policy, because we cannot do this alone,” he said.
A recent New York Times article reported that American energy companies are actually scaling back fossil fuel production because they do want to be involved in climate change action; on the other hand, internationally-owned fossil fuel extractors are ramping up production to consume as much profit as possible, proving, Goldberg said, that a plaintiff like King County can make no progress in isolation.
“It has to be done at the international level, it has to be done through the policymaking branch of government, and it has to be done in a coordinated effort that focuses on innovation, not litigation,” he stated.
Without coordinated action, the U.S. could become much more energy-dependent on foreign oil and energy producers from countries that are politically unstable.
“Unless we do this globally, we’re going to make sacrifices that many of us are willing to make, but it's going to be for naught because internationally our efforts are going to be undermined,” Goldberg said, noting that foreign and offshore producers don’t have the same green initiatives as American companies. “[...] We’re just going to be hurting ourselves and our businesses and manufacturers here in the U.S. unless we can do this at a global level.”