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Welcome to Charge Conversations, where we discuss the latest energy
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and energy related topics. I'm your host, bring him account.
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On this episode, we'll be diving into climate change litigation,
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why it's happening, what it's really accomplishing, and whether or
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not it's more about the courtroom and cash than the
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climate itself. To help us unpack all of this. A
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honor to be joined today by Phil Goldberg. Phil is
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a well respected attorney and the managing partner of Washington,
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DC's office of Schuck, Hardy and Bacon, where he co
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chairs the firm's public policy practice. He also serves as
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special counsel to the Manufacturer's Accountability Project at the National
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Association of Manufacturers. He's become a leading voice on liability,
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climate strategy and the pushback against climate lawsuits. Phil, Welcome
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to Charge Conversations.
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Rigan. Thank you so much for having me. I'm really
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honored to be here.
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Well, we're honored to have you with us here today.
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And do I leave anything out of your introductions? I
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get that right.
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I'm sure if you asked my mom or my wife,
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they'll give you a few more things. But I think
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you got the highlights covered.
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So we're both lawyers. I'm a recovering lawyer, your current
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lawyer practicing, and you know, the law is fascinating, isn't it.
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It is. I mean, it's one of the things that
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is I find interesting about my job, and I'm sure
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you do as well. As it's so dynamic and you've
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got people who are trying to push the lawn ways
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it was never intended to go, and you got people
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like us saying, you know, hang on there second, you
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know this is not what was intended. And I think
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that's pretty much, you know, a summation what's going on
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with this climate litigation. You know, the idea that we're
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suing companies who are providing us energy right things that
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we need every day to literally power our lives, turn
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on our lights, run our plants, power our cars, that
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that somehow makes them liable for climate change. It just
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doesn't make sense. It's not what liability laws for, and
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that's what we're trying to explain to the courts.
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Well, that's a great place to start. And you know,
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and listening to you and some previous things you've said,
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and full disclosure, you've been on a panel with us
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at Hudson Institute before you know, you've said previously, I think,
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but don't let me put words in your mouth that
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climate lawsuits aren't really about solving climate issues. It's more
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about raising money. Is that true?
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Well, they're about trying to advance a political agenda and
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to and to make money, not really about trying to
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do anything on the climate. In fact, if you look
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at a lot of litigation in order because they know,
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if they acknowledge that this litigation is intended to regulate
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greenhouse gas emissions and regulate energy, that you know that
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the the cases would be dead on arrival. That is
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not the role of the courts, and the U. Supreme
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Court clearly said that in AP versus Connecticut in twenty eleven.
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And so they're trying to reframe and masks what the
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cases are really about. But at the end of the day,
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they're the same as AP versus Conneticut. They' trying to
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regulate impose their preferred solutions on GSG emissions, even though
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what they do, frankly is not going to affect the climate.
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It's only going to make things more expensive for people
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here in the United States. But it's not going to
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do anything with regard to energy companies are broad the
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state run energy companies, it's only going to drive energy
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energy production, and so much of what is needed offshore
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to places that are not as conscious as American companies
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or Western European countries companies are in terms of doing
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things in a way that are better for the climate
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and better for the environment. And so the litigation actually
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can have the perverse effect of making things worse, but
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that doesn't seem to stop them. I mean, that's exactly
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why these are the issues that at the heart of
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this litigation. What we should do about climate change, how
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we should handle the production energylicy, all of that needs
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to be It's a delicate balance that needs to go
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through Congress, needs to go through the federal regulatory agencies
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that can look at all of these things that to
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balance out the impact on the climate, the need and
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affordability of energy for people and families and businesses in
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this country, and then also how does that impact US
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visa vi our competitors abroad, and how this plays into
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other energy producers around the world. You can't do that
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in a court. You can't do that in a public
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musmance lawsuit or in a state Consumer Protection Act lawsuit.
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And so that's the fundamental reason why this litigation should
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not be successful, it should not go forward because it
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can't assess all the issues that are going on that
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regulators can. But you know, that's exactly why they're trying it,
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because they want somebody to make a decision about, you know,
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adding costs to you know, to cost a certain energy.
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They want to make decisions about GHG emissions without having
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to consider affordability and all these other policies that are important.
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And so they are trying to find a judge as
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we want to take that on. And so they filed
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some thirty some odd lawsuits around the country, find trying
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to find a state that allow the claims and a
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judge that's willing to take this on. And so we'll
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see how that plays out.
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So would it be fair to say, and we'll unpack
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some of this you've said, but is this I'll say,
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people just generally, so we have a group of people
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that have a certain policy agenda we could say policy, political,
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whatever word you want to put in there, and they're
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not able to achieve their ochectives through the ballot box,
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through Congress, the executive branch so you're saying they're used
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seeing the court system, the judicial branch, the third branch
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of government has a substitute for policy making.
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That's exactly right, and they're and they're doing so in
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a way to try to get around the checks and
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balances of the normal policy making branches of government.
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And you talked a little bit about cost to consumers,
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and a lot of the listeners wonder how this affects
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them directly. And we've talked before on charge conversations about
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how cost matters, and you just mentioned that lawsuits actually
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don't keep costs down, perhaps they even drive costs up
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and slow down innovation. How does that really play out
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in practice.
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Yes, it's a great question. So the purpose of this
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litigation and we've heard them say it, you know, you know,
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say in the Boulder Laws, the lawyers who are behind
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that have said part of what they're trying to do
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here is drive up the costs of energy, because they
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believe by driving up the cost of energy, people can
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afford to use less of it, and so that'll be
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better for the environment. That is their premise here. If
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we're going to if there's a policy that makes sense
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around increasing the cost of energy. If we ask Congress
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and in the presidential administration again whichever party doesn't matter,
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to make that decision. They're going to consider factors like, well,
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how much should that be, where the money get spent,
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what do we do to help people afford energy? All
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those different things to try to figure out how to
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how to effectuate that policy in a way that could
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make sense for people. Now, they haven't done that because
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they haven't because they don't think it makes sense for people,
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And which is why these you know, this loss is
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trying to do it through the courts. But the courts
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can't look at all those other factors. They can't decide, well,
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if we allow this litigation that drives up energy costs,
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what does it mean for people, you know, in their
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monthly pocketbooks? What does it mean for the ability of
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American manufacturers to compete internationally when they're being charged more
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for their energy than someone in one of these other
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So you end up with if this litigation is allowed
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to go forward as successful, You're going to end up
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with Americans spending a lot more money on their energy,
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but not any broader impact on the environment, no ability
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to actually deal with climate change or do something meaningful
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on climate. It's just going to make things more expensive
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for us.
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Gosh. I mean, we live in such an energy abundant country,
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and I was under the impression that one of our
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strategic advantages that's powered our literally powered our economy and
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that makes us such a great nation, is that we
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have affordable energy and lots of it. I just thought
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these folks wanted us to use less polluting energy. You're saying, no,
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they want us to lose less energy and take us
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back to those days of the nineteen seventies of energy scarcity.
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Yeah, I think that's probably right. I mean, you know,
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I have not seen them say, well, we'd rather use
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this energy over that energy. Mean, certainly, you know, renewable
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energy sources, I mean that they would probably support, but
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those all rely on traditional energy as a basis for
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that generation. Right, So ultimately, you know, my understanding, and
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you know it could be wrong, is that they would like,
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you know, less energy, and certainly, if you're making choices
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among energy sources, they would like you to choose the
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energy sources that they would like you to that they
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would like you to choose, Okay, and they want to
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make that decision again through the course as opposed to
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the regulatory legislative bodies, to.
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The regular way of making laws and deciding policy. And yeah,
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I guess you know. One thing that concerns me is
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when you look at the classic definition of energy security.
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This doesn't have anything to do with the lawsuit, but
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it's about available energy that's reliable and affordable. That that's
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the entire definition of energy security. And something that I
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focus on at Hudson Institute, and it's something I thought
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was universally accepted. Is that not?
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Yeah, I mean I it seems that there would be
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others that have a different perspective on that. They believe,
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you know, I don't want to say put words in
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their mouth, but that all's fair in love and war
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and climate politics, and so you know, they see this
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as and I have heard them say this on panels
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and other places that you know, this in their mind,
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if this can help, they want to do it, even
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if it's the wrong path, even if it leads to
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bad outcomes. If they think this is one more lever
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that they could pull to advance their agenda, then they're
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willing to do it.
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Does the agenda stop with climate litigation or is this
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sort of an anti capitalist theme or some other sort
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of view of how the world out of work.
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As you said, I do work with the Manufacturer's Accountability Project.
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And one of the reasons that manufacturers generally are concerned
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about this litigation is obviously the impact I would have
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on their bottom line, but also this is the kind
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of model that could be used and frankly is starting
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to be used against other types of manufacturers. So if
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there's a societal issue, you know, related to how a
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product is being used, misused, or disposed of whether or
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not it's a understood risk, whether the manufacturers have told
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people not to do something, but they wanted to say, well,
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you made the products, you need to bear the costs
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of whatever that societal issue is. So, you know, we
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had in New York, the State a g sued a
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soda manufacturer, Botlin Company for litter in Buffalo, even though
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they had nothing to do with that, but it was
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some of their you know, the bottles from some of
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their products were found and so therefore they were sued.
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Now fortunately there the court said, no, that's not the
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responsibility of the of the soda manufacturer. It's the person
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who actually throws it in the river. Throws it in,
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you know, actually does the littering. That's the person who's responsible.
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But that's the kind of litigation we're seeing now in California.
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We're seeing just the opposite. We're seeing cases being allowed
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where they're saying, well, even though you you labeled your
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bottles as recyclable, you're responsible for the failures of the
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California recycling system that is not recycling enough and is
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allowing and it is causing litter, right and so I
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mean it's again only in bizarro world does actually labeling
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your products truthfully as recyclable can lead you to being
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liable for bottles that are not recycled. What the California
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court sev said is allowable. I mean, the cases are pending.
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We haven't seen a result of that litigation yet. But
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on the first cut through when you know that in
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that case, when the soda company filed the motion dismiss
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and said this is crazy, the court said, no, we're
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gonna let it go through. We think we think this
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is fine.
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Really, So like if I so I drove a Tesla,
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I'm an early adopter, I've had ones. I'm not anti
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green energy at all, but under that kind of philosophy.
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If I abandoned my car in Chicago, are in La,
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then you could see Tesla because my car was a
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recycled maybe.
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Yeah. And in fact, Hyundai and Kia are facing you
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know almost you know, those kinds of lawsuits right now.
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They there was during COVID there was a video that
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went kind of viral on TikTok by the Kia boys
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they called themselves, and they gave people instructions on how
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to steal Kia cars or Hyundai cars, and so it
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led to, you know, a raft of thefts of these cars.
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And so now you have people, you know, I have
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local communities suing Hundai and ki is saying, well, we
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had extra police presence as a result of your cars
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being stolen, and so you just have to pay us
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the money. Before that, you have people who were hit
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by the stolen you know, the drivers of the stolen
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vehicles suing Hyundai and Kia is saying you owe me,
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you know, for the injuries I suffered being hit by
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this person who stole the car, all outside of the
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control obviously of what Hyundai and Kia did. Their cars,
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you know, were fine up until that video went around
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and then and you know, they've changed the you know,
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the design and all that of the the models, and
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they've offered people anti theft devices that they can add
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to their cars. They have one of these older models,
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and they've done all the right things, but yet they're
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still being sued by everybody because just because you know,
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these criminals told other criminals how to steal their cars.
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Wow, So that doesn't this go back to traditional common
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law tort law causation foreseeability, Uh, the falls graph case,
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the zone of danger, the wacking, the chain of custody,
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and I thought all that stuff was settled.
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Well, as we go back to we first started with,
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it's a very dynamic area where we all think the
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law was settled until some you know, lawyer can this
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bright idea figures out how can I make money and
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leverage litigation in a way that can drive settlements. And
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so that's what they do. They file all these big
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lawsuits and hope the companies are willing to abandon either
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Meritori's defenses or that the judge will allow the case
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to go forward, in which case maybe they can get
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a verdict. And you know, and the cost of these
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virtuous go on up.
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And up and up, you know, so speaking about law,
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and you know, just uh, you know, maybe somebody would say, well,
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wait a minute, your project's back by industry, and that
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makes you that makes some people skeptical. But uh, you know,
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I know you a little bit, and you're kind of
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a left of center, aren't you. You're not exactly a
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Trump maga guy last time I checked.
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Yeah, No, you're right. I worked on the hill for
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three different Democrats and worked for presidential you know, Democratic
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presidential campaigns in my life. And uh, but when you
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look at the policies, politic shouldn't matter, right, when you
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look at the law, it's not about you know what,
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you know, what your your politics are, it's you follow
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the law. You're supposed to do the right thing. And
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here the law seems pretty clear this isn't about what
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we want to do on climate. Right. If I do
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believe that we need to do something meaningful to address
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the climate, that doesn't mean that I think this is
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a proper use in the legal system. And I serially
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don't think that that this is going to do anything
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to affect the climate in a meaningful way. So it
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becomes a distraction for those of us who actually want
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to see something get done.
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Well, you talked about how it doesn't really affect climate.
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You know, I was always under the impression that, well,
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if you want to talk about climate, and you want
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to talk about a clean climate, we're better off producing
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things in this country where we have an EPA, where
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we have very strict standandards. Isn't this a global situation
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where if you put China and India together, they're co
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two emissions, their other emissions have outgrown the western world
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of Europe, in the US already combined with their emissions.
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And there's sort of this notion that, well, if we
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just had no emissions here, the world would be fine.
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But that's kind of silly, right, We don't live in
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a bubble, That's right.
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There was an article a couple of years ago in
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New York Times that kind of pointed this out. It
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said that if you know, American energy companies are already
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reducing their use of certain energy sources, oil, gas, what
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have you. And as a result, OPEK is already starting
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to fill those gaps. And you know, the article said,
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doesn't mean we're going to have any less oil in
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the world. It just means more of it's going to
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be controlled by foreign countries and by OPEK, And so
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they said, you know, at certain whatever date they laid
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out that you know, OPEK will go up from whatever
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fifty something percent of the international market to over seventy
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percent of the international market. That's not good for the environment.
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That's not good for you know, for people who want
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to deal with climate change, because it's moving things out
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of as you said, you know, production in facilities that
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are governed under American law, where we care about those things,
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where we try to do things in ways that minimize releases,
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that minimize the impact on the environment, and so and
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over there, they just don't care, and it's just not
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as much of a factor. And so to make all
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of us pay more for our energy by burdening American
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and European energy companies those are who provide us energy
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with the cost of climate change here in the United States,
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but not putting that burden on any of these other
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state owned energy companies, then we're really we're paying more,
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but we're not getting a game, and we're not doing
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anything meaningful on the environment. So it really makes no sense.
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I mean, if you look at it in that way,
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this litigation only increases the costs, but it doesn't actually
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do something meaningful on climate change, and that makes no sense.
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It makes no sense to me.
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Yeah, that's a very good point, and kind of keeping
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on that thing. Would it be tough in these cases
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to even prove that a company's action is directly causing
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damage to the city or state. I mean, how can
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you tell whether that CO two came from my city
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or my state or a lot of us live in
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a tri state area where have multiple states. I mean,
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I don't know where does this stuff even come from?
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And the cities themselves use the products. Look at every
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police car, fire truck, municipal vehicle. I'm in my mind
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missing something.
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No, you're not, and in fact, you know. One of
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the key legal questions in this litigation right now is
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the case from Boulder, Colorado is pending in the Supreme Court,
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is whether the court's going to grant review of the case.
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They have not yet, so we're hoping they will. But
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what Boulder's trying to say is whatever actions that took
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place around the world related to the production, promotion, and
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sale of the energy sources that they're suing over violated
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Colorado law and mean such the liability under Colorado law.
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Well, Colorado law does not apply to actions that took
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place outside of Colorado, So they're trying to use Colorado
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law to govern and impose liability not just things that
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took place in other states, but things that took place
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entirely in other countries.
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That's that no state law has that reach. And that's
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what the Second Circuit said when New York City brought
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a similar lawsuit a few years ago. The Use courtpeals
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for the Second Circuit said that this kind of expansive
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concept can't be governed by by state law. It's why
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in traditional pollution cases it's not the you have to
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litigate under the rules of the source state. So if
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Colorado is saying that there's the pollution that happened in
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Nebraska is affecting us, you have to sue under Nebraska
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law because that's what governs the source. That's basic law.
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That's been the law in the United States forever, and
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these cases are trying to get around all that and
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get around so that any kind of any kind of
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understanding of how the laws worked in this area for decades.
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Do you think this sort of behavior by the people
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bringing these lawsuits so that the way they frame things
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up that that actually undermines trust in the legal system.
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I think it does. I mean, because you know, the
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people who are doing this have said, you know, publicly,
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that they look at the politics of the communities that
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they go to to, you know, to get when they're
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when they're trying recruit plaintiffs, recruit local governments to bring
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these cases. Obviously they're they're looking at the legal environment
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of the states where the cases are being brought. For example,
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they there's a case in Charleston, South Carolina, that was
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brought a couple of years ago. The mayor switched had
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you know, the the mayors no longer that from there
398
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is no longer the same now. The current mayor is
399
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not as gung ho about this litigation. The courts threw
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the case out, and the people behind the litigation decided
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just recently within the last week not to appeal that
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to the you know, to the South Carolina appellate courts
403
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and ultimately we'll go to the South Carolina Supreme Court.
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I think they understand that if they pursued that they
405
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would probably lose at the South Carolina Supreme Court and
406
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that would create it, you know, an even greater split
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in among the states that the Supreme Court would eventually
408
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have to take this. You know, this case, we think
409
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the Supreme Court states the case. Now, we've got the
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Boulder cases pending before the court. You have thirty sei
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case is going on around the country. You have several
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cases where the courts, the state court has said sure,
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will allow this litigation to go forward. You've got probably
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twice as many courts saying no, like this is not
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an appropriate use of state liability law. And we need
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one answer we need and the only place to get
417
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that one answer is the US Supreme Court. So at
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this point we really do need the US Preme Court
419
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to take this case and take these issues and lay
420
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down the rules of the road, explain what states law
421
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we know, what state law can reach, what they can't reach.
422
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How you know, there's there's some nuanced legal issues here
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dealing with jurisdiction of what's you know, federal common law
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or federal law or the state law. If they can
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just lay down the rules of the road for that,
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then these the states and the and the and the
427
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federal courts can process that and figure out what to
428
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deal with this litigation. But right now, what we're saying
429
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is you know, it's probably like a legal laboratory out
430
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there that you know that the people behind this litigation,
431
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they're trying all stories of different things see if anything
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will and the defense, you know, the companies and and
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you know, and those like us who are who don't
434
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agree with this litigation are trying to explain why. You know,
435
00:23:10.079 --> 00:23:11.799
it's like playing wackaball, right, you're trying to hit each
436
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one of those down. And if you can just have
437
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a bit, you've got have one set of rules that
438
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applies across the board that would be really helpful. And
439
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that's what we're asking.
440
00:23:20.279 --> 00:23:22.839
It's almost you talked about Lachamo. It's uh. I mean
441
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ninety percent, ninety five percent could fail, but if five
442
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percent of them succeed, and there's time and money, right,
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there's a lot of time, money, and energy that goes
444
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into all this, which ultimately I presume gets passed to
445
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consumers at some point because there's no money tree out
446
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there that or I'd have one, and I wouldn't tell
447
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you about it if I did.
448
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But I'm going to find out where you live and
449
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I'm going to go pluck.
450
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I assure you there's there's nothing that exciting out there.
451
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But uh yeah, so you know you mentioned Boulder, Are
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there any other What does the Supreme Court said, if
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anything yet? And we know that as lawyers, the Supreme
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Court does not like to get involved. They're very conscientious
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about the president that they set. They tried to decide
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things on narrow issues so as to not make broad decisions.
457
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But where does all that stand then and next year
458
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or two or who knows, or what do you think.
459
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If they take the Boulder case. They asked Boulder to
460
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respond to the petition. You know, the current administration has
461
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filed a brief saying that they should hear the case,
462
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and they don't like this litigation, even that in the
463
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previous presidential administration, the previous time when the Honolulu case
464
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came up to you know, there's also a petition for
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asking the Supreme Court to hear very similar case brought
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by the City of Honolulu. The Solicitor General under the
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Biden administration acknowledged some of the legal shortcomings with this
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litigation that you can only sue for things that happened
469
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in your state, you can't sue for things happen in
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other states. But they said this is just not the
471
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right time to hear this litigation, that they should allow
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it to percolate around the states for longer and out,
473
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you know, and and then see and see what happens.
474
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And and I can appreciate that that is often how
475
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things work. But we have a split in authority right
476
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now that we and you know, the people who are
477
00:25:13.599 --> 00:25:16.400
who are behind this litigation, they just want to file cases.
478
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I mean, they see value in the you know, the
479
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media attention and all the things that go along with
480
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filing these lawsuits. And they feel like it creates pressure
481
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on the system and maybe they can get some you know,
482
00:25:29.359 --> 00:25:34.359
policy victory in you know, in legislature since because of
483
00:25:34.359 --> 00:25:38.160
these lawsuits and whatever it might be. And so having
484
00:25:38.200 --> 00:25:41.079
these cases kind of proliferate and percolate in all these
485
00:25:41.119 --> 00:25:43.599
different states, at some point it's a waste of judicial
486
00:25:43.640 --> 00:25:46.319
resources and as you say, costs that ultimately get borne
487
00:25:46.319 --> 00:25:50.160
by by consumers. That doesn't need to happen. The Supreme
488
00:25:50.160 --> 00:25:51.880
Court could just come in now and lay down the
489
00:25:51.960 --> 00:25:52.559
rules of the road.
490
00:25:53.079 --> 00:25:55.119
And is there a split in federal circuits that would
491
00:25:55.160 --> 00:25:57.720
give something for the Supreme Court to jump onto. We
492
00:25:58.000 --> 00:26:00.720
have a first impression, and you've got split among the
493
00:26:00.720 --> 00:26:03.359
circuits or you've got to split.
494
00:26:03.480 --> 00:26:05.559
It's a split. The U. S Court Appeals for the
495
00:26:05.599 --> 00:26:09.160
Second Circuit said no to these cases. You've got state
496
00:26:09.240 --> 00:26:14.759
courts in New Jersey, in Maryland and Delaware, h and
497
00:26:14.880 --> 00:26:17.599
a couple other places that have said no to these lawsuits.
498
00:26:17.640 --> 00:26:20.160
And you've had a few the state supreme courts in
499
00:26:20.799 --> 00:26:24.200
Colorado and Hawaii have said yes to these lawsuits. And
500
00:26:24.240 --> 00:26:26.400
you have a couple other courts like in I think
501
00:26:26.480 --> 00:26:30.039
Minnesota and DC that have said yes. And so there
502
00:26:30.160 --> 00:26:32.680
is a split. There is a split of you know
503
00:26:32.839 --> 00:26:36.559
of courts where the cases have ended ended up, you
504
00:26:36.559 --> 00:26:38.960
know in state spring courts or in the US Quarter
505
00:26:39.000 --> 00:26:42.000
Appeals for the Second Circuit that are It's a very
506
00:26:42.119 --> 00:26:44.279
real split. I mean, in fact, if you when you
507
00:26:44.319 --> 00:26:47.480
look at the opinions in the Colorado Spring Court, you
508
00:26:47.480 --> 00:26:50.000
look at the opinion in uh in the Hawaii Spring Court,
509
00:26:50.039 --> 00:26:52.799
they specifically say we disagree with the US Court Appeals
510
00:26:52.799 --> 00:26:55.160
for the Second Circuit and so and then they lay
511
00:26:55.160 --> 00:26:57.200
out why they are allowing the cases to go forward.
512
00:26:57.359 --> 00:27:00.839
So there is a real, real and and deep split
513
00:27:01.079 --> 00:27:04.480
that is occurring. And again I don't see the need
514
00:27:04.759 --> 00:27:07.839
to have this split go more you know, with more
515
00:27:07.880 --> 00:27:10.200
cases kind of lining up on either side, it's time.
516
00:27:10.279 --> 00:27:11.519
It's time for the court to step in.
517
00:27:11.799 --> 00:27:14.759
Well, and finally, here let's flip the question. If these
518
00:27:14.839 --> 00:27:18.880
lawsuits go away, though, what are we risk losing? Because
519
00:27:18.880 --> 00:27:21.680
a lot of time with point of lawsuits thinking of products,
520
00:27:21.720 --> 00:27:24.680
liability or other things, they do a service, right, They
521
00:27:24.680 --> 00:27:29.079
do a service of raining things in. Sometimes is there
522
00:27:29.119 --> 00:27:32.240
a chance that companies end up with too little accountability?
523
00:27:33.240 --> 00:27:35.279
I don't think so. I mean, this is not a
524
00:27:35.319 --> 00:27:38.240
situation of who knew what when? This is a situation
525
00:27:38.319 --> 00:27:40.759
of we all understand that the use of certain energy
526
00:27:40.839 --> 00:27:45.039
products is contributing to greenhouse gas admissions and the ultimately
527
00:27:45.039 --> 00:27:48.400
to climate change. We all understand that, and that has
528
00:27:48.440 --> 00:27:50.359
been and we've all understood that for a long time,
529
00:27:51.000 --> 00:27:54.359
and we continue to try to develop policies to mitigate
530
00:27:54.359 --> 00:27:58.759
that impact while continuing to allow for the generation of
531
00:27:58.839 --> 00:28:02.000
certain energy so that we can continue to power the
532
00:28:02.039 --> 00:28:04.920
world as we would say. So that debate of how
533
00:28:04.920 --> 00:28:08.359
we keep doing that belongs in the the regulatory and
534
00:28:08.400 --> 00:28:12.480
the legislative bodies that would continue whether or without this litigation.
535
00:28:13.039 --> 00:28:17.519
And so there there's no downside to this litigation being dismissed.
536
00:28:17.880 --> 00:28:19.720
In fact, it would only be The upside is that
537
00:28:19.880 --> 00:28:22.839
it would actually focus people on the right bodies of
538
00:28:22.880 --> 00:28:26.559
government and to push for answers that are going to
539
00:28:26.759 --> 00:28:29.200
you know, truly balance and affect what we want to
540
00:28:29.200 --> 00:28:31.720
get done in this world. And I think that and
541
00:28:31.759 --> 00:28:33.839
I think that would be important as.
542
00:28:33.680 --> 00:28:36.440
We're reaching the end of our time. Anything I missed
543
00:28:36.440 --> 00:28:37.519
that you'd like to say?
544
00:28:38.039 --> 00:28:40.920
No, I mean, I'd really appreciate, you know, the being
545
00:28:40.920 --> 00:28:42.519
on a panel with you as you indicated at the
546
00:28:42.559 --> 00:28:45.680
Hudson Institute and being on your podcast today. You've been
547
00:28:45.920 --> 00:28:48.599
a great voice, you know for these kinds of common
548
00:28:48.640 --> 00:28:52.400
sense policies and UH and and providing good forum for
549
00:28:52.440 --> 00:28:54.440
these kinds of discussions. So I really appreciate that and
550
00:28:54.480 --> 00:28:56.519
thank you for it absolutely.
551
00:28:57.160 --> 00:29:00.400
And you know, before we wrap up for the we
552
00:29:00.440 --> 00:29:02.680
want to hear from you too. What are your thoughts
553
00:29:03.440 --> 00:29:09.279
on the future climate policy? What about pragmatism? What about costs?
554
00:29:09.440 --> 00:29:12.680
What about more or less energy? Where do we need
555
00:29:12.720 --> 00:29:17.079
to be Please email us anytime at Charge Conversations at
556
00:29:17.359 --> 00:29:20.160
bamaccount dot com or you can find me at bam
557
00:29:20.200 --> 00:29:24.720
account on x We read every message and value your perspectives.
558
00:29:25.480 --> 00:29:29.240
You've been listening to Charge Conversations Joe Strecker Production. If
559
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you like what you've been listening to, please hit that
560
00:29:31.279 --> 00:29:34.599
subscribe button. I'm your host, Brighan mccount, and I'll see
561
00:29:34.599 --> 00:29:37.240
you next time when we unpack the Paris Climate Change
562
00:29:37.240 --> 00:29:41.200
Agreement and why it is or maybe isn't working right
563
00:29:41.240 --> 00:29:43.960
here on Charge Conversations. I'll see you next time.
1
00:00:00.040 --> 00:00:03.520
Welcome to Charge Conversations, where we discuss the latest energy
2
00:00:03.839 --> 00:00:07.440
and energy related topics. I'm your host, bring him account.
3
00:00:07.879 --> 00:00:11.279
On this episode, we'll be diving into climate change litigation,
4
00:00:11.960 --> 00:00:15.919
why it's happening, what it's really accomplishing, and whether or
5
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not it's more about the courtroom and cash than the
6
00:00:18.320 --> 00:00:31.559
climate itself. To help us unpack all of this. A
7
00:00:31.679 --> 00:00:35.079
honor to be joined today by Phil Goldberg. Phil is
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a well respected attorney and the managing partner of Washington,
9
00:00:38.399 --> 00:00:41.799
DC's office of Schuck, Hardy and Bacon, where he co
10
00:00:41.960 --> 00:00:45.759
chairs the firm's public policy practice. He also serves as
11
00:00:45.799 --> 00:00:50.759
special counsel to the Manufacturer's Accountability Project at the National
12
00:00:50.759 --> 00:00:54.840
Association of Manufacturers. He's become a leading voice on liability,
13
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climate strategy and the pushback against climate lawsuits. Phil, Welcome
14
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to Charge Conversations.
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Rigan. Thank you so much for having me. I'm really
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honored to be here.
17
00:01:05.959 --> 00:01:08.280
Well, we're honored to have you with us here today.
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And do I leave anything out of your introductions? I
19
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get that right.
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I'm sure if you asked my mom or my wife,
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00:01:15.400 --> 00:01:16.920
they'll give you a few more things. But I think
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you got the highlights covered.
23
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So we're both lawyers. I'm a recovering lawyer, your current
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lawyer practicing, and you know, the law is fascinating, isn't it.
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It is. I mean, it's one of the things that
26
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is I find interesting about my job, and I'm sure
27
00:01:33.760 --> 00:01:36.359
you do as well. As it's so dynamic and you've
28
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got people who are trying to push the lawn ways
29
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it was never intended to go, and you got people
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like us saying, you know, hang on there second, you
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know this is not what was intended. And I think
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that's pretty much, you know, a summation what's going on
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with this climate litigation. You know, the idea that we're
34
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suing companies who are providing us energy right things that
35
00:01:55.359 --> 00:01:58.519
we need every day to literally power our lives, turn
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on our lights, run our plants, power our cars, that
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that somehow makes them liable for climate change. It just
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doesn't make sense. It's not what liability laws for, and
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00:02:08.960 --> 00:02:10.719
that's what we're trying to explain to the courts.
40
00:02:11.280 --> 00:02:14.800
Well, that's a great place to start. And you know,
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and listening to you and some previous things you've said,
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and full disclosure, you've been on a panel with us
43
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at Hudson Institute before you know, you've said previously, I think,
44
00:02:26.400 --> 00:02:27.960
but don't let me put words in your mouth that
45
00:02:28.159 --> 00:02:32.360
climate lawsuits aren't really about solving climate issues. It's more
46
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about raising money. Is that true?
47
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Well, they're about trying to advance a political agenda and
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to and to make money, not really about trying to
49
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do anything on the climate. In fact, if you look
50
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at a lot of litigation in order because they know,
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if they acknowledge that this litigation is intended to regulate
52
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greenhouse gas emissions and regulate energy, that you know that
53
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the the cases would be dead on arrival. That is
54
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not the role of the courts, and the U. Supreme
55
00:03:01.560 --> 00:03:04.479
Court clearly said that in AP versus Connecticut in twenty eleven.
56
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And so they're trying to reframe and masks what the
57
00:03:07.680 --> 00:03:09.960
cases are really about. But at the end of the day,
58
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they're the same as AP versus Conneticut. They' trying to
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regulate impose their preferred solutions on GSG emissions, even though
60
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what they do, frankly is not going to affect the climate.
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It's only going to make things more expensive for people
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here in the United States. But it's not going to
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do anything with regard to energy companies are broad the
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state run energy companies, it's only going to drive energy
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energy production, and so much of what is needed offshore
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to places that are not as conscious as American companies
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or Western European countries companies are in terms of doing
68
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things in a way that are better for the climate
69
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and better for the environment. And so the litigation actually
70
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can have the perverse effect of making things worse, but
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that doesn't seem to stop them. I mean, that's exactly
72
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why these are the issues that at the heart of
73
00:04:01.759 --> 00:04:05.400
this litigation. What we should do about climate change, how
74
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we should handle the production energylicy, all of that needs
75
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to be It's a delicate balance that needs to go
76
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through Congress, needs to go through the federal regulatory agencies
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that can look at all of these things that to
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balance out the impact on the climate, the need and
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affordability of energy for people and families and businesses in
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this country, and then also how does that impact US
81
00:04:30.120 --> 00:04:34.079
visa vi our competitors abroad, and how this plays into
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other energy producers around the world. You can't do that
83
00:04:37.800 --> 00:04:40.240
in a court. You can't do that in a public
84
00:04:40.319 --> 00:04:42.920
musmance lawsuit or in a state Consumer Protection Act lawsuit.
85
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And so that's the fundamental reason why this litigation should
86
00:04:49.319 --> 00:04:51.720
not be successful, it should not go forward because it
87
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can't assess all the issues that are going on that
88
00:04:55.399 --> 00:04:59.959
regulators can. But you know, that's exactly why they're trying it,
89
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because they want somebody to make a decision about, you know,
90
00:05:05.040 --> 00:05:09.560
adding costs to you know, to cost a certain energy.
91
00:05:09.720 --> 00:05:13.560
They want to make decisions about GHG emissions without having
92
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to consider affordability and all these other policies that are important.
93
00:05:17.879 --> 00:05:20.000
And so they are trying to find a judge as
94
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we want to take that on. And so they filed
95
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some thirty some odd lawsuits around the country, find trying
96
00:05:25.959 --> 00:05:28.480
to find a state that allow the claims and a
97
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judge that's willing to take this on. And so we'll
98
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see how that plays out.
99
00:05:33.000 --> 00:05:35.519
So would it be fair to say, and we'll unpack
100
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some of this you've said, but is this I'll say,
101
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people just generally, so we have a group of people
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that have a certain policy agenda we could say policy, political,
103
00:05:46.279 --> 00:05:48.480
whatever word you want to put in there, and they're
104
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not able to achieve their ochectives through the ballot box,
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through Congress, the executive branch so you're saying they're used
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seeing the court system, the judicial branch, the third branch
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of government has a substitute for policy making.
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That's exactly right, and they're and they're doing so in
109
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a way to try to get around the checks and
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balances of the normal policy making branches of government.
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And you talked a little bit about cost to consumers,
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and a lot of the listeners wonder how this affects
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them directly. And we've talked before on charge conversations about
114
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how cost matters, and you just mentioned that lawsuits actually
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don't keep costs down, perhaps they even drive costs up
116
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and slow down innovation. How does that really play out
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in practice.
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Yes, it's a great question. So the purpose of this
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00:06:46.639 --> 00:06:49.519
litigation and we've heard them say it, you know, you know,
120
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say in the Boulder Laws, the lawyers who are behind
121
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that have said part of what they're trying to do
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here is drive up the costs of energy, because they
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believe by driving up the cost of energy, people can
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afford to use less of it, and so that'll be
125
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better for the environment. That is their premise here. If
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we're going to if there's a policy that makes sense
127
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around increasing the cost of energy. If we ask Congress
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and in the presidential administration again whichever party doesn't matter,
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to make that decision. They're going to consider factors like, well,
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how much should that be, where the money get spent,
131
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what do we do to help people afford energy? All
132
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those different things to try to figure out how to
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how to effectuate that policy in a way that could
134
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make sense for people. Now, they haven't done that because
135
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they haven't because they don't think it makes sense for people,
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And which is why these you know, this loss is
137
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trying to do it through the courts. But the courts
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can't look at all those other factors. They can't decide, well,
139
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if we allow this litigation that drives up energy costs,
140
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what does it mean for people, you know, in their
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monthly pocketbooks? What does it mean for the ability of
142
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American manufacturers to compete internationally when they're being charged more
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for their energy than someone in one of these other
144
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So you end up with if this litigation is allowed
145
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to go forward as successful, You're going to end up
146
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with Americans spending a lot more money on their energy,
147
00:08:09.439 --> 00:08:13.839
but not any broader impact on the environment, no ability
148
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to actually deal with climate change or do something meaningful
149
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on climate. It's just going to make things more expensive
150
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for us.
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Gosh. I mean, we live in such an energy abundant country,
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and I was under the impression that one of our
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strategic advantages that's powered our literally powered our economy and
154
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that makes us such a great nation, is that we
155
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have affordable energy and lots of it. I just thought
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these folks wanted us to use less polluting energy. You're saying, no,
157
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they want us to lose less energy and take us
158
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back to those days of the nineteen seventies of energy scarcity.
159
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Yeah, I think that's probably right. I mean, you know,
160
00:08:55.039 --> 00:08:58.000
I have not seen them say, well, we'd rather use
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this energy over that energy. Mean, certainly, you know, renewable
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energy sources, I mean that they would probably support, but
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those all rely on traditional energy as a basis for
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that generation. Right, So ultimately, you know, my understanding, and
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you know it could be wrong, is that they would like,
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you know, less energy, and certainly, if you're making choices
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among energy sources, they would like you to choose the
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energy sources that they would like you to that they
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would like you to choose, Okay, and they want to
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make that decision again through the course as opposed to
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the regulatory legislative bodies, to.
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The regular way of making laws and deciding policy. And yeah,
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I guess you know. One thing that concerns me is
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when you look at the classic definition of energy security.
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This doesn't have anything to do with the lawsuit, but
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it's about available energy that's reliable and affordable. That that's
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the entire definition of energy security. And something that I
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focus on at Hudson Institute, and it's something I thought
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was universally accepted. Is that not?
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Yeah, I mean I it seems that there would be
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others that have a different perspective on that. They believe,
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you know, I don't want to say put words in
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their mouth, but that all's fair in love and war
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and climate politics, and so you know, they see this
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as and I have heard them say this on panels
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and other places that you know, this in their mind,
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if this can help, they want to do it, even
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if it's the wrong path, even if it leads to
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bad outcomes. If they think this is one more lever
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that they could pull to advance their agenda, then they're
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willing to do it.
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Does the agenda stop with climate litigation or is this
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sort of an anti capitalist theme or some other sort
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of view of how the world out of work.
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As you said, I do work with the Manufacturer's Accountability Project.
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And one of the reasons that manufacturers generally are concerned
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about this litigation is obviously the impact I would have
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on their bottom line, but also this is the kind
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of model that could be used and frankly is starting
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to be used against other types of manufacturers. So if
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there's a societal issue, you know, related to how a
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product is being used, misused, or disposed of whether or
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not it's a understood risk, whether the manufacturers have told
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people not to do something, but they wanted to say, well,
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you made the products, you need to bear the costs
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of whatever that societal issue is. So, you know, we
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had in New York, the State a g sued a
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soda manufacturer, Botlin Company for litter in Buffalo, even though
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they had nothing to do with that, but it was
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some of their you know, the bottles from some of
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their products were found and so therefore they were sued.
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Now fortunately there the court said, no, that's not the
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responsibility of the of the soda manufacturer. It's the person
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who actually throws it in the river. Throws it in,
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you know, actually does the littering. That's the person who's responsible.
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But that's the kind of litigation we're seeing now in California.
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We're seeing just the opposite. We're seeing cases being allowed
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where they're saying, well, even though you you labeled your
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bottles as recyclable, you're responsible for the failures of the
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California recycling system that is not recycling enough and is
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allowing and it is causing litter, right and so I
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mean it's again only in bizarro world does actually labeling
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your products truthfully as recyclable can lead you to being
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liable for bottles that are not recycled. What the California
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court sev said is allowable. I mean, the cases are pending.
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We haven't seen a result of that litigation yet. But
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on the first cut through when you know that in
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that case, when the soda company filed the motion dismiss
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and said this is crazy, the court said, no, we're
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gonna let it go through. We think we think this
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is fine.
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Really, So like if I so I drove a Tesla,
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I'm an early adopter, I've had ones. I'm not anti
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green energy at all, but under that kind of philosophy.
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If I abandoned my car in Chicago, are in La,
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then you could see Tesla because my car was a
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recycled maybe.
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Yeah. And in fact, Hyundai and Kia are facing you
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know almost you know, those kinds of lawsuits right now.
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They there was during COVID there was a video that
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went kind of viral on TikTok by the Kia boys
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they called themselves, and they gave people instructions on how
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to steal Kia cars or Hyundai cars, and so it
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led to, you know, a raft of thefts of these cars.
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And so now you have people, you know, I have
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local communities suing Hundai and ki is saying, well, we
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had extra police presence as a result of your cars
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being stolen, and so you just have to pay us
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the money. Before that, you have people who were hit
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by the stolen you know, the drivers of the stolen
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vehicles suing Hyundai and Kia is saying you owe me,
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you know, for the injuries I suffered being hit by
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this person who stole the car, all outside of the
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control obviously of what Hyundai and Kia did. Their cars,
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you know, were fine up until that video went around
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and then and you know, they've changed the you know,
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the design and all that of the the models, and
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they've offered people anti theft devices that they can add
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to their cars. They have one of these older models,
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and they've done all the right things, but yet they're
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still being sued by everybody because just because you know,
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these criminals told other criminals how to steal their cars.
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Wow, So that doesn't this go back to traditional common
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law tort law causation foreseeability, Uh, the falls graph case,
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the zone of danger, the wacking, the chain of custody,
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and I thought all that stuff was settled.
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Well, as we go back to we first started with,
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it's a very dynamic area where we all think the
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law was settled until some you know, lawyer can this
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bright idea figures out how can I make money and
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leverage litigation in a way that can drive settlements. And
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so that's what they do. They file all these big
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lawsuits and hope the companies are willing to abandon either
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Meritori's defenses or that the judge will allow the case
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to go forward, in which case maybe they can get
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a verdict. And you know, and the cost of these
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virtuous go on up.
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And up and up, you know, so speaking about law,
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and you know, just uh, you know, maybe somebody would say, well,
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wait a minute, your project's back by industry, and that
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makes you that makes some people skeptical. But uh, you know,
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I know you a little bit, and you're kind of
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a left of center, aren't you. You're not exactly a
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Trump maga guy last time I checked.
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Yeah, No, you're right. I worked on the hill for
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three different Democrats and worked for presidential you know, Democratic
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presidential campaigns in my life. And uh, but when you
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look at the policies, politic shouldn't matter, right, when you
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look at the law, it's not about you know what,
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you know, what your your politics are, it's you follow
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the law. You're supposed to do the right thing. And
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here the law seems pretty clear this isn't about what
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we want to do on climate. Right. If I do
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believe that we need to do something meaningful to address
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the climate, that doesn't mean that I think this is
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a proper use in the legal system. And I serially
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don't think that that this is going to do anything
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to affect the climate in a meaningful way. So it
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becomes a distraction for those of us who actually want
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to see something get done.
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Well, you talked about how it doesn't really affect climate.
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You know, I was always under the impression that, well,
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if you want to talk about climate, and you want
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to talk about a clean climate, we're better off producing
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things in this country where we have an EPA, where
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we have very strict standandards. Isn't this a global situation
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where if you put China and India together, they're co
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two emissions, their other emissions have outgrown the western world
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of Europe, in the US already combined with their emissions.
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And there's sort of this notion that, well, if we
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just had no emissions here, the world would be fine.
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But that's kind of silly, right, We don't live in
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a bubble, That's right.
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There was an article a couple of years ago in
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New York Times that kind of pointed this out. It
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said that if you know, American energy companies are already
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reducing their use of certain energy sources, oil, gas, what
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have you. And as a result, OPEK is already starting
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to fill those gaps. And you know, the article said,
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doesn't mean we're going to have any less oil in
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the world. It just means more of it's going to
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be controlled by foreign countries and by OPEK, And so
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they said, you know, at certain whatever date they laid
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out that you know, OPEK will go up from whatever
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fifty something percent of the international market to over seventy
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percent of the international market. That's not good for the environment.
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That's not good for you know, for people who want
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to deal with climate change, because it's moving things out
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of as you said, you know, production in facilities that
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are governed under American law, where we care about those things,
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where we try to do things in ways that minimize releases,
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that minimize the impact on the environment, and so and
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over there, they just don't care, and it's just not
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as much of a factor. And so to make all
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of us pay more for our energy by burdening American
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and European energy companies those are who provide us energy
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with the cost of climate change here in the United States,
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but not putting that burden on any of these other
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state owned energy companies, then we're really we're paying more,
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but we're not getting a game, and we're not doing
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anything meaningful on the environment. So it really makes no sense.
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I mean, if you look at it in that way,
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this litigation only increases the costs, but it doesn't actually
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do something meaningful on climate change, and that makes no sense.
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It makes no sense to me.
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Yeah, that's a very good point, and kind of keeping
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on that thing. Would it be tough in these cases
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to even prove that a company's action is directly causing
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damage to the city or state. I mean, how can
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you tell whether that CO two came from my city
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or my state or a lot of us live in
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a tri state area where have multiple states. I mean,
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I don't know where does this stuff even come from?
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And the cities themselves use the products. Look at every
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police car, fire truck, municipal vehicle. I'm in my mind
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missing something.
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No, you're not, and in fact, you know. One of
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the key legal questions in this litigation right now is
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the case from Boulder, Colorado is pending in the Supreme Court,
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is whether the court's going to grant review of the case.
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They have not yet, so we're hoping they will. But
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what Boulder's trying to say is whatever actions that took
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place around the world related to the production, promotion, and
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sale of the energy sources that they're suing over violated
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Colorado law and mean such the liability under Colorado law.
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Well, Colorado law does not apply to actions that took
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place outside of Colorado, So they're trying to use Colorado
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law to govern and impose liability not just things that
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took place in other states, but things that took place
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entirely in other countries.
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That's that no state law has that reach. And that's
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what the Second Circuit said when New York City brought
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a similar lawsuit a few years ago. The Use courtpeals
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for the Second Circuit said that this kind of expansive
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concept can't be governed by by state law. It's why
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in traditional pollution cases it's not the you have to
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litigate under the rules of the source state. So if
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Colorado is saying that there's the pollution that happened in
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Nebraska is affecting us, you have to sue under Nebraska
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law because that's what governs the source. That's basic law.
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That's been the law in the United States forever, and
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these cases are trying to get around all that and
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get around so that any kind of any kind of
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understanding of how the laws worked in this area for decades.
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Do you think this sort of behavior by the people
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bringing these lawsuits so that the way they frame things
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up that that actually undermines trust in the legal system.
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I think it does. I mean, because you know, the
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people who are doing this have said, you know, publicly,
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that they look at the politics of the communities that
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they go to to, you know, to get when they're
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when they're trying recruit plaintiffs, recruit local governments to bring
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these cases. Obviously they're they're looking at the legal environment
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of the states where the cases are being brought. For example,
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they there's a case in Charleston, South Carolina, that was
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brought a couple of years ago. The mayor switched had
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you know, the the mayors no longer that from there
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is no longer the same now. The current mayor is
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not as gung ho about this litigation. The courts threw
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the case out, and the people behind the litigation decided
401
00:21:29.519 --> 00:21:33.200
just recently within the last week not to appeal that
402
00:21:33.480 --> 00:21:36.079
to the you know, to the South Carolina appellate courts
403
00:21:36.079 --> 00:21:38.240
and ultimately we'll go to the South Carolina Supreme Court.
404
00:21:38.359 --> 00:21:41.039
I think they understand that if they pursued that they
405
00:21:41.079 --> 00:21:44.440
would probably lose at the South Carolina Supreme Court and
406
00:21:44.480 --> 00:21:47.039
that would create it, you know, an even greater split
407
00:21:47.279 --> 00:21:50.720
in among the states that the Supreme Court would eventually
408
00:21:50.799 --> 00:21:53.440
have to take this. You know, this case, we think
409
00:21:53.480 --> 00:21:55.240
the Supreme Court states the case. Now, we've got the
410
00:21:55.920 --> 00:21:59.720
Boulder cases pending before the court. You have thirty sei
411
00:21:59.839 --> 00:22:03.279
case is going on around the country. You have several
412
00:22:04.000 --> 00:22:06.319
cases where the courts, the state court has said sure,
413
00:22:06.319 --> 00:22:09.200
will allow this litigation to go forward. You've got probably
414
00:22:09.440 --> 00:22:12.839
twice as many courts saying no, like this is not
415
00:22:13.400 --> 00:22:17.200
an appropriate use of state liability law. And we need
416
00:22:17.240 --> 00:22:19.599
one answer we need and the only place to get
417
00:22:19.599 --> 00:22:22.440
that one answer is the US Supreme Court. So at
418
00:22:22.440 --> 00:22:24.160
this point we really do need the US Preme Court
419
00:22:24.240 --> 00:22:27.200
to take this case and take these issues and lay
420
00:22:27.240 --> 00:22:31.480
down the rules of the road, explain what states law
421
00:22:32.000 --> 00:22:33.920
we know, what state law can reach, what they can't reach.
422
00:22:34.400 --> 00:22:37.200
How you know, there's there's some nuanced legal issues here
423
00:22:37.240 --> 00:22:40.400
dealing with jurisdiction of what's you know, federal common law
424
00:22:40.480 --> 00:22:43.519
or federal law or the state law. If they can
425
00:22:43.559 --> 00:22:45.160
just lay down the rules of the road for that,
426
00:22:45.519 --> 00:22:47.880
then these the states and the and the and the
427
00:22:47.880 --> 00:22:50.400
federal courts can process that and figure out what to
428
00:22:50.440 --> 00:22:53.119
deal with this litigation. But right now, what we're saying
429
00:22:53.200 --> 00:22:55.559
is you know, it's probably like a legal laboratory out
430
00:22:55.599 --> 00:22:57.480
there that you know that the people behind this litigation,
431
00:22:57.519 --> 00:22:59.640
they're trying all stories of different things see if anything
432
00:22:59.680 --> 00:23:03.720
will and the defense, you know, the companies and and
433
00:23:03.799 --> 00:23:06.960
you know, and those like us who are who don't
434
00:23:06.960 --> 00:23:10.039
agree with this litigation are trying to explain why. You know,
435
00:23:10.079 --> 00:23:11.799
it's like playing wackaball, right, you're trying to hit each
436
00:23:11.799 --> 00:23:13.519
one of those down. And if you can just have
437
00:23:13.559 --> 00:23:15.319
a bit, you've got have one set of rules that
438
00:23:15.359 --> 00:23:18.400
applies across the board that would be really helpful. And
439
00:23:18.440 --> 00:23:19.000
that's what we're asking.
440
00:23:20.279 --> 00:23:22.839
It's almost you talked about Lachamo. It's uh. I mean
441
00:23:22.920 --> 00:23:25.440
ninety percent, ninety five percent could fail, but if five
442
00:23:25.480 --> 00:23:27.880
percent of them succeed, and there's time and money, right,
443
00:23:27.920 --> 00:23:30.799
there's a lot of time, money, and energy that goes
444
00:23:30.880 --> 00:23:34.400
into all this, which ultimately I presume gets passed to
445
00:23:34.480 --> 00:23:37.319
consumers at some point because there's no money tree out
446
00:23:37.319 --> 00:23:40.000
there that or I'd have one, and I wouldn't tell
447
00:23:40.000 --> 00:23:40.960
you about it if I did.
448
00:23:41.039 --> 00:23:44.079
But I'm going to find out where you live and
449
00:23:44.119 --> 00:23:44.759
I'm going to go pluck.
450
00:23:47.359 --> 00:23:49.880
I assure you there's there's nothing that exciting out there.
451
00:23:49.920 --> 00:23:52.680
But uh yeah, so you know you mentioned Boulder, Are
452
00:23:52.680 --> 00:23:55.359
there any other What does the Supreme Court said, if
453
00:23:55.400 --> 00:23:58.480
anything yet? And we know that as lawyers, the Supreme
454
00:23:58.519 --> 00:24:02.160
Court does not like to get involved. They're very conscientious
455
00:24:02.279 --> 00:24:04.960
about the president that they set. They tried to decide
456
00:24:04.960 --> 00:24:09.720
things on narrow issues so as to not make broad decisions.
457
00:24:09.720 --> 00:24:13.279
But where does all that stand then and next year
458
00:24:13.359 --> 00:24:15.759
or two or who knows, or what do you think.
459
00:24:16.000 --> 00:24:19.759
If they take the Boulder case. They asked Boulder to
460
00:24:19.839 --> 00:24:23.160
respond to the petition. You know, the current administration has
461
00:24:23.200 --> 00:24:26.039
filed a brief saying that they should hear the case,
462
00:24:26.079 --> 00:24:28.480
and they don't like this litigation, even that in the
463
00:24:28.599 --> 00:24:35.079
previous presidential administration, the previous time when the Honolulu case
464
00:24:35.160 --> 00:24:37.119
came up to you know, there's also a petition for
465
00:24:37.160 --> 00:24:39.799
asking the Supreme Court to hear very similar case brought
466
00:24:39.799 --> 00:24:42.599
by the City of Honolulu. The Solicitor General under the
467
00:24:42.599 --> 00:24:47.160
Biden administration acknowledged some of the legal shortcomings with this
468
00:24:47.200 --> 00:24:49.480
litigation that you can only sue for things that happened
469
00:24:49.519 --> 00:24:51.200
in your state, you can't sue for things happen in
470
00:24:51.240 --> 00:24:53.400
other states. But they said this is just not the
471
00:24:53.480 --> 00:24:56.440
right time to hear this litigation, that they should allow
472
00:24:56.480 --> 00:25:00.440
it to percolate around the states for longer and out,
473
00:25:00.960 --> 00:25:03.359
you know, and and then see and see what happens.
474
00:25:04.480 --> 00:25:07.319
And and I can appreciate that that is often how
475
00:25:07.359 --> 00:25:09.799
things work. But we have a split in authority right
476
00:25:09.839 --> 00:25:13.559
now that we and you know, the people who are
477
00:25:13.599 --> 00:25:16.400
who are behind this litigation, they just want to file cases.
478
00:25:16.480 --> 00:25:21.079
I mean, they see value in the you know, the
479
00:25:21.160 --> 00:25:23.480
media attention and all the things that go along with
480
00:25:23.680 --> 00:25:26.799
filing these lawsuits. And they feel like it creates pressure
481
00:25:26.839 --> 00:25:29.240
on the system and maybe they can get some you know,
482
00:25:29.359 --> 00:25:34.359
policy victory in you know, in legislature since because of
483
00:25:34.359 --> 00:25:38.160
these lawsuits and whatever it might be. And so having
484
00:25:38.200 --> 00:25:41.079
these cases kind of proliferate and percolate in all these
485
00:25:41.119 --> 00:25:43.599
different states, at some point it's a waste of judicial
486
00:25:43.640 --> 00:25:46.319
resources and as you say, costs that ultimately get borne
487
00:25:46.319 --> 00:25:50.160
by by consumers. That doesn't need to happen. The Supreme
488
00:25:50.160 --> 00:25:51.880
Court could just come in now and lay down the
489
00:25:51.960 --> 00:25:52.559
rules of the road.
490
00:25:53.079 --> 00:25:55.119
And is there a split in federal circuits that would
491
00:25:55.160 --> 00:25:57.720
give something for the Supreme Court to jump onto. We
492
00:25:58.000 --> 00:26:00.720
have a first impression, and you've got split among the
493
00:26:00.720 --> 00:26:03.359
circuits or you've got to split.
494
00:26:03.480 --> 00:26:05.559
It's a split. The U. S Court Appeals for the
495
00:26:05.599 --> 00:26:09.160
Second Circuit said no to these cases. You've got state
496
00:26:09.240 --> 00:26:14.759
courts in New Jersey, in Maryland and Delaware, h and
497
00:26:14.880 --> 00:26:17.599
a couple other places that have said no to these lawsuits.
498
00:26:17.640 --> 00:26:20.160
And you've had a few the state supreme courts in
499
00:26:20.799 --> 00:26:24.200
Colorado and Hawaii have said yes to these lawsuits. And
500
00:26:24.240 --> 00:26:26.400
you have a couple other courts like in I think
501
00:26:26.480 --> 00:26:30.039
Minnesota and DC that have said yes. And so there
502
00:26:30.160 --> 00:26:32.680
is a split. There is a split of you know
503
00:26:32.839 --> 00:26:36.559
of courts where the cases have ended ended up, you
504
00:26:36.559 --> 00:26:38.960
know in state spring courts or in the US Quarter
505
00:26:39.000 --> 00:26:42.000
Appeals for the Second Circuit that are It's a very
506
00:26:42.119 --> 00:26:44.279
real split. I mean, in fact, if you when you
507
00:26:44.319 --> 00:26:47.480
look at the opinions in the Colorado Spring Court, you
508
00:26:47.480 --> 00:26:50.000
look at the opinion in uh in the Hawaii Spring Court,
509
00:26:50.039 --> 00:26:52.799
they specifically say we disagree with the US Court Appeals
510
00:26:52.799 --> 00:26:55.160
for the Second Circuit and so and then they lay
511
00:26:55.160 --> 00:26:57.200
out why they are allowing the cases to go forward.
512
00:26:57.359 --> 00:27:00.839
So there is a real, real and and deep split
513
00:27:01.079 --> 00:27:04.480
that is occurring. And again I don't see the need
514
00:27:04.759 --> 00:27:07.839
to have this split go more you know, with more
515
00:27:07.880 --> 00:27:10.200
cases kind of lining up on either side, it's time.
516
00:27:10.279 --> 00:27:11.519
It's time for the court to step in.
517
00:27:11.799 --> 00:27:14.759
Well, and finally, here let's flip the question. If these
518
00:27:14.839 --> 00:27:18.880
lawsuits go away, though, what are we risk losing? Because
519
00:27:18.880 --> 00:27:21.680
a lot of time with point of lawsuits thinking of products,
520
00:27:21.720 --> 00:27:24.680
liability or other things, they do a service, right, They
521
00:27:24.680 --> 00:27:29.079
do a service of raining things in. Sometimes is there
522
00:27:29.119 --> 00:27:32.240
a chance that companies end up with too little accountability?
523
00:27:33.240 --> 00:27:35.279
I don't think so. I mean, this is not a
524
00:27:35.319 --> 00:27:38.240
situation of who knew what when? This is a situation
525
00:27:38.319 --> 00:27:40.759
of we all understand that the use of certain energy
526
00:27:40.839 --> 00:27:45.039
products is contributing to greenhouse gas admissions and the ultimately
527
00:27:45.039 --> 00:27:48.400
to climate change. We all understand that, and that has
528
00:27:48.440 --> 00:27:50.359
been and we've all understood that for a long time,
529
00:27:51.000 --> 00:27:54.359
and we continue to try to develop policies to mitigate
530
00:27:54.359 --> 00:27:58.759
that impact while continuing to allow for the generation of
531
00:27:58.839 --> 00:28:02.000
certain energy so that we can continue to power the
532
00:28:02.039 --> 00:28:04.920
world as we would say. So that debate of how
533
00:28:04.920 --> 00:28:08.359
we keep doing that belongs in the the regulatory and
534
00:28:08.400 --> 00:28:12.480
the legislative bodies that would continue whether or without this litigation.
535
00:28:13.039 --> 00:28:17.519
And so there there's no downside to this litigation being dismissed.
536
00:28:17.880 --> 00:28:19.720
In fact, it would only be The upside is that
537
00:28:19.880 --> 00:28:22.839
it would actually focus people on the right bodies of
538
00:28:22.880 --> 00:28:26.559
government and to push for answers that are going to
539
00:28:26.759 --> 00:28:29.200
you know, truly balance and affect what we want to
540
00:28:29.200 --> 00:28:31.720
get done in this world. And I think that and
541
00:28:31.759 --> 00:28:33.839
I think that would be important as.
542
00:28:33.680 --> 00:28:36.440
We're reaching the end of our time. Anything I missed
543
00:28:36.440 --> 00:28:37.519
that you'd like to say?
544
00:28:38.039 --> 00:28:40.920
No, I mean, I'd really appreciate, you know, the being
545
00:28:40.920 --> 00:28:42.519
on a panel with you as you indicated at the
546
00:28:42.559 --> 00:28:45.680
Hudson Institute and being on your podcast today. You've been
547
00:28:45.920 --> 00:28:48.599
a great voice, you know for these kinds of common
548
00:28:48.640 --> 00:28:52.400
sense policies and UH and and providing good forum for
549
00:28:52.440 --> 00:28:54.440
these kinds of discussions. So I really appreciate that and
550
00:28:54.480 --> 00:28:56.519
thank you for it absolutely.
551
00:28:57.160 --> 00:29:00.400
And you know, before we wrap up for the we
552
00:29:00.440 --> 00:29:02.680
want to hear from you too. What are your thoughts
553
00:29:03.440 --> 00:29:09.279
on the future climate policy? What about pragmatism? What about costs?
554
00:29:09.440 --> 00:29:12.680
What about more or less energy? Where do we need
555
00:29:12.720 --> 00:29:17.079
to be Please email us anytime at Charge Conversations at
556
00:29:17.359 --> 00:29:20.160
bamaccount dot com or you can find me at bam
557
00:29:20.200 --> 00:29:24.720
account on x We read every message and value your perspectives.
558
00:29:25.480 --> 00:29:29.240
You've been listening to Charge Conversations Joe Strecker Production. If
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you like what you've been listening to, please hit that
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subscribe button. I'm your host, Brighan mccount, and I'll see
561
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you next time when we unpack the Paris Climate Change
562
00:29:37.240 --> 00:29:41.200
Agreement and why it is or maybe isn't working right
563
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