Today a U.S. District Judge threw out New York City’s lawsuit against five major energy companies alleging damages relating to climate change.
Judge John Keenan wrote in his opinion that, “Global warming and solutions thereto must be addressed by the two other branches of government,” not the judiciary, according to Bloomberg.
This major blow marks the third climate case to be thrown out—litigation in San Francisco and Oakland was dismissed by a federal judge last month on similar grounds. Both of these cases were dismissed by U.S. District Court judges after the suits were ordered to be heard in federal court rather than state court, where they were initially filed.
Given these recent developments, it’s safe to say that the nationwide climate litigation campaign is not going exactly as planned. But while this isn’t the outcome activists are seeking, it’s possible that it’s still the outcome they expected.
Remember, the campaign itself can be traced back to a 2012 meeting among climate activists and lawyers in La Jolla, Calif., where a plan to stigmatize energy companies was devised. During the meeting, participants discussed ways to replicate the broad-based litigation brought against tobacco companies in the 1990s and apply it to fossil fuel companies. But during the meeting, Dan Yankelovich, co-founder of Public Agenda and expert in public opinion research, expressed reservations about depending on a legal strategy to change climate change policy:
“I am concerned about so much emphasis on legal strategies. The point of departure is a confused, conflicted, inattentive public. Are legal strategies the most effective strategies? I believe they are important after the public agrees how to feel about an issue. Then you can sew it up legally. Legal strategies themselves are a double-edged sword. The more adversarial the discourse, the more minds are going to be closed.”
The recent case dismissals call into question the future of the other pending lawsuits. As Amy Harder of Axios recently pointed out, three additional pending lawsuits, filed in Washington State, Colorado and Rhode Island, have recently been punted from state to federal court—following the same track as the New York City and San Francisco and Oakland cases.
To the casual observer, the question of which court will hear which case may seem like an uninteresting procedural development. But in reality, this move has wide-reaching implications for the broader legal campaign against the fossil fuel industry, as we are seeing today.
So why is the court venue important?
As a refresher, a mix of several cities, counties and states—all but one of which are located on the coasts –are suing a variety of energy companies for damages related to climate change. The issue with these lawsuits (other than the fact that their legal logic is dubious at best), is that the language incorporated in each complaint was crafted under the impression that these cases would be heard in state court.