The Coming Global-Warming Litigation Onslaught

By targeting American energy, commerce, and insurance in multibillion-dollar class-action lawsuits, plaintiffs’ lawyers have seized the public concern (and confusion) over the environment with the hopes of cashing in big—at the expense of American companies, energy rate payers, and taxpayers.

As alleged in a $400-million lawsuit filed by the City of Kivalina, Alaska, against 24 energy companies, the case by plaintiffs’ attorneys for global-warming causation is simple. Energy companies produce carbon dioxide (CO2) and other so-called greenhouse gases. These gases cause global warming, according to some scientific conclusions. The defendant companies “know they are responsible” for global warming and are working in concert to cover up the truth. Therefore, say the plaintiffs’ lawyers, the defendant companies are part of a conspiracy to defraud the public and to create a public nuisance.

“Keep in mind that most greenhouse gases, including CO2, are not regulated by the U.S. Environmental Protection Agency, precisely because the science is not at all clear,” says Shannon Goessling, SLF’s executive director. “That’s why you don’t see a single federal statute or regulation cited in these lawsuits. The plaintiffs’ lawyers are attempting to regulate through the courts—a situation that raises the stakes for companies that follow the current environmental guidelines for clean air and water.”

The stakes are staggering. In addition to tens of billions of dollars in alleged damages, plaintiffs’ lawyers and their allies in as many as 20 state attorneys general offices are seeking to compel some form of remediation for alleged global-warming causation. The Lieberman-Warner bill recently introduced in the U.S. Senate would create a so-called “cap-and-trade” program to penalize greenhouse-gas emitters.

According to a National Association of Manufacturers study, the bill would cost four million jobs in the United States by 2030 and slash $669 billion a year from the nation’s economy.

Harvard University’s Kennedy School of Government energy expert Henry Lee told Time magazine that the cost of climate change adaptations would absorb 2 to 3 percent of the nation’s $13 trillion GDP per year for the foreseeable future.

“The plaintiffs’ bar is following the litigation strategies developed in the tobacco and asbestos mega-lawsuits. The difference is that the plaintiffs’ bar is now adopting questionable science to prove that American industry is responsible for global-climate change,” Lee says.

Understanding how to conduct business in the current environment will be critical for American corporations, says SLF’s Goessling. “There are basic assumptions being made in global-warming litigation that are wide open for attack,” she continues. “A majority of American corporations are developing ‘green-friendly’ marketing programs. Plaintiffs’ lawyers are citing those programs as ‘evidence’ corporations know they are causing global warming. It’s a huge leap to blur the line between ‘environmentally responsible’ and ‘causes global warming.’ The two issues are distinct.”

Taken in the context of massive lawsuits, the battle over climate-change responsibility and Corporate America’s responses to it will be as much about the hearts and minds of the American public as it is about the credibility of climate-change science. The courtroom will be only one of many battlefields.