July 23, 2018
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Lawsuits can’t stop climate change

George Danby | BDN
George Danby | BDN
By Andrew Ketterer, Special to the BDN

For once, California is exporting a trend I feel qualified to assess. Coastal cities and counties across the Golden State are banding together to sue the supermajor oil and gas companies for the alleged future damages of climate change. If Maine cities are ever approached to join the suit as plaintiffs, they should not. Despite the surface appeal of lawsuits in the name of the environment, they have the potential to cause more harm than good.

I have observed firsthand how powerful public class-action lawsuits can be. As Maine’s attorney general, I joined with state attorneys general across the country in the 1990s to sue the major tobacco companies for hiding the truth about their product’s impact on human health. I am proud to have helped win what is believed to be the largest legal settlement in Maine’s history.

Despite the success of this strategy, I am not convinced that it can nor should be used in connection with climate change. The marketing and sale of tobacco products created a unique situation and called for state attorneys general to step up and protect their constituents by enforcing each state’s consumer protection laws.

I urge any city or county attorney or public policymaker in Maine to approach California-style, climate-change lawsuits with a spirit of Yankee skepticism. No one needs to smoke tobacco. In contrast, there are many necessary uses for fossil fuels, whether it is to heat Maine schools and hospitals in winter or power the cars of state troopers. So trying to compare a substance with no necessary use consumed by a minority of Americans to a potentially problematic substance used in some way by every American just does not fit.

These lawsuits contend that large oil companies, which for decades have undertaken serious scientific inquiries into the environmental impacts of their industry, are downplaying or hiding data that as far back as the 1970s showed that carbon dioxide emissions would drive climate change. The oil companies respond that activists and trial lawyers are cherry-picking quotes to create a damning portrait of hidden data, while ignoring contrary predictions. Attempting to punish these companies for making products that are essential to the lives of all Americans is simply wrong.

Finally, the comparison with the tobacco cases breaks down when one looks at the level of certainty involved. Smoking kills, that is a fact. Climate change on the other hand exists in a nebulous world of computer projections and continually revised hypotheses. Although nearly all scientists agree climate change is real, its likely effects are still a subject of intense disagreement.

Even when litigation appears warranted, the conscientious attorney must weigh the costs and benefits of that litigation. The greatest imperative in climate change is to reduce the scope of potential damage. In this effort, we have more to gain by cooperating with the oil and gas industry than by demonizing it. Consider the environmental benefits of the industry’s most notable accomplishment, the increase in natural gas production in this country as a result of hydraulic fracturing.

Abundant natural gas is replacing coal for power generation, which has contributed to reducing the nation’s carbon dioxide emissions to levels not seen since the 1990s. The industry is also investing billions into researching development of fuels from algae, as well as solar and wind energy. Big oil companies are centers of scientific talent and capital, and we need that to create positive change.

It makes more sense to steer these companies in a greener direction than to try to bankrupt them. What good would it do to divert the research and development budgets of these corporations to litigation, with a large chunk of it going into the hands of just a few trial lawyers? Would that cool the Earth by even a hundredth of a degree?

In my three terms as Maine’s attorney general, I found that lawsuits cannot solve all of our problems. Partnership, not reprisal, is the best way to deal with climate change. And besides, imagine the carbon footprint of all the forests that would have to be felled to make all the paper for all the briefs that Maine lawyers would have to file.

Andrew Ketterer served as Maine attorney general from 1995 to 2001. He also is a former president of the National Association of Attorneys General. He is a partner at the law firm Ketterer & Ketterer.

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