By Drew Wilson on May 8, 2019
During the George W. Bush Administration, little was done on the climate change front, so environmental activists took to the courts.
There was a partial victory in Massachusetts v. Environmental Protection Agency, where the U.S. Supreme Court ruled the EPA had the authority to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act.
If the EPA continued not to regulate emissions, the court said the Clean Air Act gave it an obligation to explain whether or not those emissions contribute to climate change.
Several other lawsuits were filed seeking to get specific climate change mitigation policies on the books. All were unsuccessful.
The best-known example is American Electric Power Company v. Connecticut, a “public nuisance” lawsuit which resulted in the Supreme Court ruling unanimously that corporations cannot be sued for greenhouse gas emissions.
In the majority opinion, Justice Ruth Bader Ginsburg said regulating emissions fell under the purview of the EPA and, by extension, the legislative and executive branches of the federal government.
The ruling, in essence, states the law doesn’t give courts the authority to put emissions policy into place.
Since then, attorneys have been recruiting cities as plaintiffs in state-level public nuisance lawsuits against major energy companies.
Fort Lauderdale once considered filing one of those suits but has since backed out. Attorneys have attempted to recruit other Florida metros as well.
According to Phil Goldberg, special counsel to the Manufacturers’ Accountability Project and managing partner at Shook, Hardy & Bacon, even if a city follows through and files suit, it’s not a winning strategy.
“These lawsuits are just as baseless as the ones from a decade ago,” he told Florida Politics, saying SCOTUS’ ruling was clear.
But the possibility of a state court ruling in a city’s favor exists. If that were to happen, the consequences could be dire for everyday Floridians.
There is an obvious financial motive for the attorneys filing these suits — they stand to collect tens, if not hundreds, of millions of dollars in fees if they win a judgment, and there are no other clear beneficiaries.
Bob McClure of the James Madison Institute says that’s the motivation.
“These lawsuits are not a debate about the truth and consequences of climate change,” he said.
A wealth transfer from utilities to attorneys would put average Floridians on the hook through increased energy rates.
Utility companies simply provide power to users. If they had to pay out due to a court judgment, that expense would be passed on to customers through higher rates just like other costs such as storm recovery.
But a backdoor tax on energy is likely the end goal for those behind the litigation in the first place.
If damages are awarded and the cost of a kilowatt-hour jumped from 10 cents to $1, for example, most ratepayers would be forced to drastically cut back their power consumption.
While that could mean some hard-to-fathom changes in the home, it could devastate the state’s economy, McClure said.
Florida is home to 20,000 manufacturing companies, which provide nearly 400,000 jobs. Manufacturers are also among the top energy users, consuming about one-third of fossil fuels.
If their energy costs spiked dramatically, all those jobs would be in jeopardy overnight — and it wouldn’t stop there.
“If one was won, you would have an AOB-style grass fire,” McClure said, adding that it could undermine the progress already being made.
From 2005 through 2017, EPA data shows greenhouse gas emissions have fallen 13 percent.
Utility companies have been even more successful in slashing emissions than the nation at large, lowering their carbon dioxide emissions by nearly 30 percent since they hit their peak in 2010.
McClure attributes the falling emissions to “good business” — corporations have started to realize that in a climate-conscious world, it’s economically beneficial for them to make investments in alternative energy sources.
As of now, Goldberg and McClure are unaware of any Florida cities or counties that are considering heading to court. McClure said, at the moment, attorneys and municipal governments are “just having conversations.”
“But lots of crazy ideas start with conversations before they take off,” he warned.