Holman Jenkins’ January 19 Wall Street Journal column criticizing New York City’s lawsuit against the oil industry for climate change injuries is a perfect example of why one shouldn’t spout opinions about litigation without reading the relevant documents—or at least without asking a lawyer what they say.
Mr. Jenkins starts by saying that NYC’s claim “that oil companies cause a public nuisance in the form of greenhouse gases, has already been rejected by the U.S. Supreme Court.” Wrong. In fact, there are two significant mistakes in a single sentence.
Jenkins is referring to the Supreme Court’s 2011 decision in Connecticut v. AEP, which held that you could not bring a federal common-law nuisance claim against greenhouse gas emitters. New York City is bringing state common law nuisance claims (among others) against fossil fuel producers. As any lawyer would have told him, there are huge legal differences between these two cases.
On the federal v. state claim issue, Jenkins would not even have needed to call a lawyer if he had actually read AEP. He would have come across the Court explicitly distinguishing state nuisance claims from federal ones, saying that it was not addressing the merits of the former: “None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.” It doesn’t appear to me like they “rejected” these claims. But why let facts get in the way of a good screed?
As to who the defendant is, in AEP they were the people burning fossil fuels, not the people producing and marketing them. This is a big difference. Suppose my brakes fail and I run over granny in the crosswalk; as the driver I may or may not be liable, but GM would absolutely be on the hook.
Undaunted, Jenkins continues: “The oil performed exactly as advertised. The public got exactly the benefit it expected. Where is the fraud?”
That the oil “performed exactly as advertised” and the public got “exactly the benefit it expected” is precisely the problem; just substitute “cigarettes” or “asbestos” for “oil”. The complaint (really, if only he had read it) lays out the long history of defendants’ concealing their knowledge that their oil would cause global warming, in much the same way as R.J. Reynolds concealed the dangers of smoking and Johns-Manville concealed the dangers of asbestos.
The climate nuisance cases are a serious and controversial matter, and deserve far more thoughtful analysis than Jenkins’ knee-jerk response.