recent commentary by AEI economist Ben Zycher on the pending climate nuisance suits shows general misunderstanding of the facts they’re based on, the relief they seek, and the broader impact they will have. And, not being a lawyer, he does not understand litigation either. In short, Zycher has no idea what he is talking about.[1]

Zycher’s biggest misunderstanding concerns the very purpose of these cases, which is reflected in the relief sought. If you want to know why someone is suing, a good place to start is with what they are asking the Court to order the defendants to do. Zycher repeatedly says that the purpose of these cases is to make federal emissions reduction policy. Not so. As a result of climate alteration (a more accurate term than “climate change”), each of the plaintiffs in these cases is asking the court to order the defendants to help pay for the significant additional costs to provide basic government services.  And “basic government services” means just that: maintaining roads, bridges and other infrastructure, preventing damage from floods and wildfires, ensuring adequate drinking water, etc.  Any responsible local government should recognize that these costs will be incurred, and plan on finding the means of paying them.  

So who is going to pay those costs? There are only three places that money can come from: the national government, local taxpayers, or the fossil fuel companies. Congress has shown practically zero interest in picking up the tab; none of the proposed carbon tax bills does more than dole out a pittance for a few selected coastal jurisdictions. That leaves local taxpayers or the fossil fuel companies. According to Zycher, it should be those taxpayers. Since they have been using fossil fuels for decades, he asks, “Why are they not responsible for climate phenomena?”

The short answer is that it was not the plaintiffs, but rather the fossil fuel companies who, knowing that climate alteration would result from using fossil fuels, produced and marketed them without (at best) disclosing what they knew, or (at worst) actively misleading the public as to these dangers. Now that they have publicly acknowledged the impacts of fossil fuels, they are calmly announcing that their future business plans are to produce and sell even greater amounts of fossil fuels and make climate alteration—and the plaintiffs’ injuries—even worse.  Moreover, defendants are free to argue, that as a legal matter, any award to the plaintiffs should be reduced by the amount of injury caused by the fossil fuels they burned.

This is a good segue into the facts that these cases are based on. Zycher says that it is “preposterous” that the defendants knew “in the 1980s the adverse effects of GHG emissions in this century,” because even the IPCC’s most recent assessment “discusses large uncertainties about prospective effects on sea levels and the like.” The fact that there may be uncertainty—even large uncertainties—in the magnitude of a particular impact does not mean that the defendants did not know that such impacts would result from the use of their products. 

I suggest that Zycher read the factual allegations in the complaints about what defendants were saying in their own internal documents, going back to the 1960’s, about this. Here is are two paragraphs from the complaint in Boulder v. Suncorp:

345. In the same 1968 [American Petroleum Institute] report, Defendants were told that “there seems to be no doubt that the potential damage to our environment could be severe” and that the lack of attention on CO2 emissions was “ironic” because they “may be the cause of serious world-wide environmental changes.” Based on “[t]he latest available data”, Defendants were warned that temperatures might increase by at least 1.1°F if the concentration of atmospheric CO2 increased 25 percent, and that temperature increases would “be three times this figure” if CO2 levels doubled. The 1968 report concluded that – even if these projections were somewhat imprecise – “[s]ignificant temperature changes are almost certain to occur by the year 2000 and these could bring about climatic changes.”

350. The [API] task force circulated a commissioned report in 1980, on “The CO2 Problem,” which added alarming projections to those contained in the 1968 report. The 1980 report predicted a 4.5°F (2.5°C) temperature rise by 2038, which would have “major economic consequences.” Indeed, the rise would effectively “halt” “world economic growth” by 2025. By 2067, the report predicted a 9°F (5°C) temperature rise – bringing “globally catastrophic effects.” The report also warned that uncertainty might mean the impacts would happen even faster than initially recognized: there was a “1 in 10 chance [of a 4.5°F temperature rise] by 2005,” not 2038.

Given these facts—and this is just some of what has been made public, let alone what remains in defendants’ files—Zycher’s “preposterous” claim is self-descriptive. The companies in question were aware of the potential damages that would result from altering the climate. 

Apropos of these companies, Zycher objects that only a handful of oil companies are defendants: “That the litigation is being aimed at only the five or so large producers actually vulnerable in American courts speaks volumes about the pecuniary, ideological, and political imperatives actually underlying this effort.” He apparently has not bothered to read – or even look at the first page of – most of the complaints in these cases, e.g.Baltimore v. B.P. (15 named defendants, not counting affiliated entities); Imperial Beach v. Chevron (21 named defendants, not counting affiliated entities, including Arch Coal and Peabody Energy); Pacific Coast Federation of Fishermen’s Associations v. Chevron (21 named defendants, not including affiliated entities); Rhode Island v. Chevron (14 named defendants, not including affiliated entities), etc.. Zycher’s reference to the “pecuniary” motives behind this litigation shows, moreover, that at some level he understands that, like all tort cases, these are about being compensated for injury and not making federal climate policy.[2]

This all leads to his misunderstanding about what the ultimate effects of successful litigation would be. According to Zycher, “The groups promoting such litigation are engaged in self-deception if they believe that a large increase in fuel prices caused by litigation losses will fail to engender a firestorm in Congress, led by policymakers representing producers and consumers of fossil fuels.” Although this concern is based on plaintiffs winning these cases, Zycher does not pause to think about what that would mean in the court of public opinion and Congress. 

Presumably, it means that after years of litigating against the best corporate law firms in the United States, plaintiffs would have provedthat (1) they will incur additional costs as a result of climate alteration; (2) defendants knew that climate alteration would result from using fossil fuels, but went ahead and produced and marketed them without disclosing what they knew, or actively misled the public, and (3) therefore defendants are responsible for a share of those increased costs. While that appears to make no difference to Zycher, doesn’t he think these findings would change the political dialogue?  Would there be such a firestorm?  When other industries—drug and tobacco companies come to mind—engage in such behavior, it has substantially altered public opinion.

And finally, a word about those “large increases” in fuel prices caused by these findings. Assuming that the defendants would pass these on to consumers, those increases would then fall in equal proportion on each fossil fuel user. Thus everyone, including plaintiffs, would be paying for their exact share of the damage caused by using those fuels, and it is hard to imagine a more equitable outcome than that. 

[1]Full disclosure: I am counsel to the plaintiffs in one such case, Boulder County v. Suncorp.

[2]For an explanation as to the legal strategy as to why a few cases were brought with only five oil company defendants, see this post.

Photo by Markus Spiske from Pexels