OPINION:
Today, in courthouses across America, manufacturers are under attack. Politically-minded trial lawyers partnering with headline-seeking politicians are suing manufacturers — and using climate change as the justification.
Similar frivolous lawsuits have failed in the past, but the mere possibility of a big payoff is enough to make trial lawyers keep at it. The potential costs to manufacturers, workers and our legal system are too great to let this troubling trend continue — especially since the lawsuits will do nothing to solve the global challenge of climate change in the first place.
These legal attacks have been launched from New York City, where Mayor Bill de Blasio led an effort to sue five manufacturers, to California, where eight different municipalities have filed suit over the purported effects of climate change. Baltimore, Maryland, King County in Washington state, Rhode Island and Boulder, Colorado, are also pursuing misguided litigation.
If these legal claims are left unchecked, they could jeopardize the ability of manufacturers to continue growing and creating jobs as new companies and new sectors become targets of “jackpot justice.” That is why the National Association of Manufacturers last year launched our Manufacturers’ Accountability Project (MAP), an effort to shine a light on these frivolous lawsuits and those who file them.
As part of the effort to combat this litigation, the MAP is now calling for reform in three areas.
First, manufacturers are calling on public officials to be fully transparent when it comes to financial arrangements with contingency-fee plaintiffs’ lawyers. The public deserves to know, for example, that recent records uncovered by the MAP show that law firm Hagens Berman stands to gain an astounding 23.5 percent payday from its handling of San Francisco’s lawsuit. With billions in alleged damages at stake, trial lawyers could earn a fortune if an activist judge rules in their favor. The MAP has sought similar information from New York City and eight other jurisdictions that are teaming with for-profit attorneys to seek climate lawsuit paydays. Taxpayers have a right to this information.
Second, the MAP is calling for new federal pre-emption laws that would further clarify what the U.S. Supreme Court has already held, that these activities are already highly regulated at the federal level and the Clean Air Act pre-empts them. This kind of clear pre-emption would protect manufacturers and consumers from frivolous lawsuits that unfairly seek to charge them with liability for climate change.
Climate change is a global problem that requires a global solution, and manufacturers are already doing their part. Since 2005, manufacturers have lowered their greenhouse gas emissions by more than 10 percent while growing our contribution to the economy by 19 percent. For virtually every air pollutant regulated by the EPA, manufacturers have made dramatic reductions over past decades. Manufacturers are an active part of the solution, building and developing more efficient and sustainable products and processes.
Third, the MAP is calling for an immediate withdrawal of all climate change-related lawsuits against manufacturers. These lawsuits attempt to label manufacturers a “public nuisance,” a flawed legal strategy that Professor Richard Epstein, a tort law authority at Stanford University, calls an “enormous stretch.” This type of climate litigation has failed time and again in court, including the unanimous 8-0 decision in the 2011 U.S. Supreme Court case American Electric Power v. Connecticut.
Fortunately, many legal authorities agree with the MAP’s view. Fifteen state attorneys general recently filed an amicus brief urging a federal judge in the U.S. District Court for the Northern District of California to dismiss San Francisco and Oakland’s lawsuit against manufacturers. The attorneys general argue that such misguided lawsuits represent a slippery slope in which any entity using fossil fuels, including states, could find themselves the targets of costly lawsuits.
After hearing the arguments, Judge William Alsup dismissed the lawsuits, ruling that the courts are not the place to address such global policy issues and that such litigation could even “interfere with reaching a worldwide consensus” on addressing climate change. He questioned the very idea of blaming manufacturers when “all of us have benefitted” from using fossil fuels. Municipalities still pursuing litigation should take note, withdraw their lawsuits and stop wasting time and resources.
Even in the past few days, Judge Alsup’s action was quickly followed by Judge John Keenan’s dismissal of the New York lawsuit, dealing a major blow to the momentum of the effort spearheaded by Mr. de Blasio to hold manufacturers accountable for climate change. It’s not an unreasonable notion to believe that the other similar suits still active may face similar fates.
These types of lawsuits against manufacturers should trouble reasonable policymakers and the public. By calling for commonsense reforms, we seek to create a future in which manufacturers spend less time in the courtroom fighting legal maneuvering and jackpot justice that does nothing for workers, families or the environment — and more time innovating and producing the technologies and products that will improve our world.
• Jay Timmons is the president and CEO of the National Association of Manufacturers (NAM).
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