Federalist Society offers up world’s dumbest arguments against climate change lawsuits

  • Published on April 1st, 2020

Earlier this month, the Federalist Society (the conservative, Koch and industry-funded legal group that’s using Trump to reshape the judiciary) held a virtual event on the “consequences of municipal litigation.” While the event apparently covered lawsuits like those concerning the opioid epidemic or data privacy breaches, the climate lawsuits are what the fossil fuel industry PR group Energy in Depth’s Spencer Walrath cared about enough to write a blog post about.

drill baby drill CO2 lawsuits

By Climate Denier Roundup

Maybe Walrath should’ve skipped it. The event’s main take-aways from comments made by Ohio Attorney General Dave Yost and Tennessee Deputy Attorney General Thomas Skrmetti are laughably weak arguments.

Yost and Skrmetti start out normal enough, claiming that these lawsuits aren’t fit for local courts because they involve such a big issue (despite the fact that many of these suits aren’t arguing for climate policy at all, but instead merely compensation for damages). But their arguments quickly devolve.

Skrmetti said it’s a bad idea for cities to take on big climate lawsuits because they lack the resources to do so and “they are just not sophisticated litigants.” Instead, cities are approached by private lawyers who offer to take the case and only get paid if they win, Skrmetti said, “so when a lawyer comes in and says ‘we can get you free money, we just need a contingency…,’ it’s hard to say no to free money.”

It’s hard to see how free money is bad, and Walrath doesn’t really explain, other than to say that these private lawyers are just in it for the money. He also warns that they’ll take a cut of the winnings, meaning a smaller sum goes to municipalities than what they would’ve won had they taken on the case on their own, without outside counsel… which, again, according to Skrmetti, they’re not equipped to do for the most part, because they’re “just not sophisticated litigants.”

But it gets worse! Despite the fact that Big Oil hates the comparison to the tobacco industry litigation, Walrath uses that successful example of municipal litigation against an industry for harms it knowingly caused to argue against this example of manufacturer accountability, saying “state and local leaders are sometimes irresponsible managers of settlement funds that are extremely large in scale.”

As an example, Walrath points to the American Lung Association’s request that more of the tobacco industry’s settlement money given to states should be spent on actual anti-smoking efforts. He highlights that only “2 cents of every dollar” that states get are going to anti-smoking and public health programs, but for some reason, doesn’t include ALA’s preceding sentence that in 2015-2016, that 2% was $470 million dollars.

It is unfortunately true, though, that a lot of the money is going to other things. Specifically, towards plugging holes in budgets left by what Walrath calls “fiscally irresponsible lawmakers who didn’t want to raise taxes.”

So Big Oil wants us to believe that climate litigation is bad because if cities and states win, they can use that settlement money to provide more public services without raising taxes.

We’re no sophisticated litigant, but that doesn’t sound like a very persuasive argument…

(Crossposted with DailyKos. Image by Friends of the Earth.)

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