AG Bonta’s climate litigation strategy was already rejected by the courts in 2007

Zealous government actors often have a short-term memory on the limits of their constitutional authority.  Just over seventeen years ago the Attorney General of California tried to sue six major automakers for “public nuisance” seeking damages for alleged contributions to climate change. The California AG’s novel claims were roundly rejected in 2007.

Trying to do the same thing again expecting a different result, the State of California filed a climate change lawsuit in late September – this time against six major oil companies and their trade association and this time in state court – based on similar baseless claims of public nuisance and consumer fraud.

All involved in and observing the current lawsuit will be served well by a reminder of what happened in the 2007.   Like the latest AG filing, the State of California v. General Motors Corp., et al. lawsuit filed in September 2016 against the auto manufacturers claimed that carbon dioxide (“CO2”) emissions from vehicles constituted a public nuisance for their contribution to global warming.

In September 2007, Judge Martin J. Jenkins of the United States District Court for the Northern District of California granted the defendants motion to dismiss.  Among Judge Jenkins’ conclusions, he explained that “The adjudication of plaintiff’s claim would require the court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development.” Such “balancing of those competing interests is the type of initial policy determination to be made by the political branches, and not this Court,” Judge Jenkins concluded.

Judge Jenkins further explained that “the court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government.”  So not only are the courts ill-equipped to balance competing interests, but any attempt to do so would necessarily invade areas of authority and expertise committed to the province of the elected branches.

Consequently, Judge Jenkins held that the California AG’s claims – claims that mirror the claims the AG is trying again this year against oil companies – presented “a non-justiciable political question.”  California state constitutional and federal constitutional limits require that courts stay in their lane and allow policy decisions to be made by policy makers, not judges.

Judge Jenkins also spent considerable time explaining that the political branches have been active in balancing interests in the climate change space as they develop policy, further evidencing the need for courts of any kind to stay out of their way.

When the country tackled air pollution in the late 1960s and 1970s, Congress engaged in legislative debates and reached compromise between competing economic, consumer, and environmental values when deciding how to fix the air quality problem.  We did not resort to legitimizing regulation by litigation to get more than what was possible through legislative means.

As Judge Jenkins explained in 2007, “The political branches’ actions and deliberate inactions in the area of global warming further highlight this case as one for nonjudicial discretion.”  When a court piles on additional liabilities, it runs the risk of circumventing intentional inaction while concomitantly frustrating existing regulatory regimes.  From the “who should decide the rules” perspective, legislatures have institutional competency that is comparatively superior to that of courts when it comes to evaluating where duties should lie for climate change harm avoidance and liability.

Although the current AG lawsuit has been brought in state court, the fundamental limits on the judicial power and the risks of interfering with political processes remain the same.  New climate change standards should be debated and polices implemented by legislation if they are necessary after careful deliberation, expert analysis, and a chance for policymakers to evaluate tradeoffs to new rules.

Climate change policy should be set outside the courts, not through novel litigation.

Donald J. Kochan is Professor of Law and Executive Director of the Law & Economics Center at George Mason University Antonin Scalia Law School.