David T. Stevenson is the director of the Center for Energy & Environmental Policy at the Caesar Rodney Institute.
After nearly three years of legal wrangling, it appears that Delaware’s climate change lawsuit will finally get its day in court. But, with no less than the very energy future of our state and the country at stake, leaders in Dover should think twice about pursuing this shortsighted legal strategy.
The lawsuit, which was filed by Attorney General Kathy Jennings in September 2020, aims to hold more than 30 energy companies liable for the purported effects of climate change. The complaints lodged against the defendants include allegations of negligent failure to warn, trespass, public nuisance and violations of Delaware’s Consumer Fraud Act.
One obvious fact is this lawsuit would wreak havoc on Delaware’s economy by bankrupting an industry that, as of 2021, was responsible for at least 15,700 jobs and supported over $2 billion in labor income. In other words, this sector is critical for the economy and upward mobility for the people of Delaware. This lawsuit will significantly increase the costs of oil, gas and other energy staples for families and businesses across the state.
In addition, there are also a number of shortcomings with the legal merits of the lawsuit. For example, proving the public nuisance alleged against energy producers under Delaware law would be unprecedented. No court has recognized a nuisance claim under Delaware law based on the production, promotion, sale or use of a lawful consumer product, never mind one that is so essential to everyday life. Furthermore, due to the global nature of emissions, it is impossible in specific states to prove a relationship between the activities of a company and its impact on climate change locally. The fact of the matter is anyone who engages in day-to-day activities such as heating and cooling his or her home or commuting to work could theoretically be held liable for contributing to climate change. Singling out energy producers is misplaced.
That is why, for these reasons and many more, no state has successfully litigated a public nuisance claim against an energy company for climate change, and several cases have been dismissed. In fact, many of AG Jennings’ counterparts — 18 other state attorneys general — in 2019 filed an amicus brief with the Supreme Court, expressing their disapproval of such public nuisance claims as a way to mitigate the effects of climate change.
There is also a raft of problems with allegations that energy companies engaged in consumer fraud by concealing their knowledge of purported climate change risks. By relying on this statute, AG Jennings has employed the time-tested tactic of using ambiguity in the law to pursue a political agenda. Free speech rights, as enshrined in the Constitution, may also be in jeopardy should this statute be successfully litigated. By suing a company for the causes of climate change — not due to emissions generated but based on their engagement with and investment in scientific inquiry and political dialogue surrounding climate policy — the First Amendment itself and the very right to participate in public debate is also at stake.
Ironically, these lawsuits will also hamper an industry that has been helping to reduce emissions. Energy firms have driven down their own greenhouse gas emissions at a rate far above the national average, all while increasing their value to the American economy. In fact, they effectively reduced one of the gases climate lawsuit proponents claim contributes most to global warming — methane — by 43% from 1990 to 2017, providing an important part of the answer to slowing climate change.
Ultimately, this lawsuit will waste millions of taxpayer dollars, run counter to the stated policy goals of its proponents and jeopardize our energy future. If Delaware’s elected officials were truly serious about confronting the effects of what they believe to be man-made climate change, instead of just extracting a big payday on the backs of the energy companies, they would seek to work with them as partners instead of suing them out of existence.
Providing affordable, abundant and reliable energy is not a liability-inducing event, but it is necessary to maintain our modern way of life and should be treated as such.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.