Northern California Record

Thursday, October 17, 2019

NFIB attorney says climate change lawsuits filed by cities are 'so lacking in merit'

Federal Court

By Kayla Elder | Jul 17, 2019


SACRAMENTO – The National Federation of Independent Business is pushing back against the rising number of lawsuits across the country seeking to hold fossil fuel companies accountable for climate change. 

“I honestly have a hard time taking those lawsuits very seriously because they are so lacking in merit,” said Luke Wake, an attorney with NFIB Small Business Legal Center in Sacramento. “That said, you can’t ignore a federal lawsuit. We are definitely aware, definitely weighing into amicus briefs and pretty engaged.” 

Wake said the California cap-and-trade program is the most aggressive in the United States, but that its efforts are arbitrary even if they are successful in reducing total greenhouse gas emissions to 1990 levels by 2020 and 40 percent below 1990 levels by 2030.

“Even if it was entirely successful in accomplishing its stated goals, my understanding is that it would be a drop in the bucket for what we would actually need to see in order to meaningfully change the projections on climate change,” he said. 

This is an international issue, according to Wake.

"For a global issue, it’s strange for parochial interests to be inserting themselves,” Wake said. “If you want to actually address this concerted effort across international lines, it really does seem arbitrary to force a select handful of businesses to bare a cost - it’s not going to matter a whole lot. That’s the issue - it’s unfair.”

Wake said the top concern for small businesses is energy costs, according to NFIB membership surveys.

“If government, either by regulation, statute or court order, if they are imposing restrictions that are going to result in higher costs for running our vehicles or running our facilities, our members are going to be concerned,” Wake said. “I think it’s inherently unfair to single out specific entities … when in fact, this is a collective problem.”

Wake noted the NFIB’s engagement as amicus to a number of cases, including the Juliana v. U.S. case backed by nonprofit Our Children’s Trust. The NFIB filed an amicus brief with the U.S. Ninth Circuit Court of Appeals in February in the case. 

The NFIB holds a principle argument in these cases that it is not for the judiciary to craft standards.

“In our book, yes, it is a policy question that should be best sorted out by Congress and that is where it belongs,” Wake said, adding that it has to be a legislative approach or regulation authorized by a statute where Congress or a state clearly intended to control the greenhouse emissions. 

NFIB believes a public nuisance law cannot be applied to this global use of greenhouse gas emissions. 

“When you begin to apply it to a global situation where everyone is contributing in the aggregate, it becomes incredibly tenuous in a way that I think there is no sound basis for a judge to start drawing those lines about who actually needs to change what conduct,” Wake said. 

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