Maryland’s trial courts got it right on climate lawsuits

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When the Maryland Supreme Court hears arguments next week, our state will be at the epicenter of a national litigation campaign over climate change. This litigation campaign, though, has nothing to do with reducing greenhouse gas emissions or other meaningful policy to address climate change. These lawsuits are pure money plays.

The hearing will involve three lawsuits — all dismissed by Maryland trial judges. In these cases, Baltimore, Annapolis, and Anne Arundel County are suing American and European energy companies to try to make them pay for climate adaptation costs. Nearly three-dozen other local and state governments around the country have filed similar lawsuits. Most have retained private lawyers, who, according to reports, are being funded by outside groups to wage the litigation.

The greatest concern with this litigation is its cost to consumers. Any money paid by energy companies will be charged to people and businesses in Maryland and around the country who rely on affordable energy to heat their homes, fuel cars and power hospitals, factories and other workplaces. And, with lawyers and interest groups behind the litigation taking up to 25% of that hard-earned money, this cash grab is the last thing Marylanders can afford.

The groups and lawyers supporting and sponsoring this litigation campaign have acknowledged these dynamics. They have said one of their goals is to use these lawsuits to raise national energy prices. It is their way of holding consumers accountable for their energy use. By pushing these cases through the courts, they are trying to side-step public debate and avoid questions over how much should be paid, who should pay it and where the money should be spent.

But these questions are critical to the American people. Answering them takes public policy balancing that can occur only in Congress and federal agencies. Those branches of government can assess the many factors that go into setting America’s energy policy — from climate change to energy affordability to energy security. That’s not the role of state courts. State lawsuits can address only legal rights and wrongs — not global policy issues.

For this reason, the groups behind the litigation are now downplaying its scope. They say these lawsuits are just about seeking money for local government projects — not anything else. Many courts — including the Maryland trial courts here — have not been fooled.

When New York City brought a similar climate lawsuit a few years ago, the U.S. Court of Appeals for the Second Circuit called this framing a false veneer: “[W]e are told that this is merely a local spat about the City’s eroding shoreline, which will have no appreciable effect on national energy or environmental policy. We disagree. Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”

A Maryland judge echoed this reasoning in dismissing Baltimore’s case last year. She said the city’s claims are “artful,” but “not sustainable.” This litigation is “simply a way to get in the back door what they cannot get in the front door.” Managing the products and activities around the world that impact the climate are global issues that cannot be “handled by individual states.” The court concluded that the case “goes beyond the limits of Maryland state law.”

In the past two years, courts in Delaware, New Jersey, New York, Pennsylvania and South Carolina have said much of the same. Imposing liability over global greenhouse gas emissions is beyond the limits of any state’s law. This makes sense. Maryland cannot say what is unlawful in Texas or Saudi Arabia any more than Texas or Saudi Arabia can decide what is unlawful here.

We hope the Maryland Supreme Court agrees and upholds the trial courts’ dismissals. It is time for our elected leaders to focus on real solutions. Manufacturers are already investing in cleaner technologies, improving efficiency, and reducing emissions while keeping energy reliable and affordable. Building on that progress through thoughtful policy will strengthen American leadership and protect our energy future. This lawsuit distraction should come to an end.

Phil Goldberg is special counsel to the Manufacturers’ Accountability Project, a project of the National Association of Manufacturers Legal Center. He resides in Maryland and is a member of the Maryland State Bar.