San Francisco and New York are seeking billion dollar damages from oil companies for their role in climate change and it seems other liberal enclaves want to get in on the act.  Boulder, CO, is now getting in on the act by suing oil giants Exxon Mobile and Suncor, arguing their actions are responsible for drought, fires and bark beetle infestations.  Each lawsuit, are not productive and based on dubious assumptions.

Boulder’s lawsuit in particular argues oil companies are responsible for more than $100 million in damages to everything from flood control and wildfires, to….wait for it, reduced employee efficiency.  Apparently, climate change so worries employees they cannot focus on their computer screens.

One of the attorney’s for Boulder says the lawsuit is modeled after the 1990’s litigation that almost brought down tobacco companies.  It should be noted in the 1990’s tobacco companies were aggressively marketing their products to kids, promoting false science and flaunting federal regulations in their efforts to sell their products.  Tobacco companies are paying to this day due to the $206 billion settlement they agreed to.

Of course, in reality, Big Oil and Big Tobacco have little in common.  The only thing they have in common are deep pockets which can drag the litigation on for years on end.

It is important to compare the two lawsuits to get an idea of just how dubious climate change lawsuits are.  In the case of tobacco companies and smokers the connection was clear.  There were relatively few tobacco companies, even in the 90’s, which meant the majority of tobacco products were produced by a select few companies.  Additionally, tobacco obviously affected smokers.

But, climate change and greenhouse gases are another thing entirely.  Everybody contributes to greenhouse gases.  Yes, your breathing actually contributes.  Assessing this impact is almost impossible (computer models are all based on theories and assumptions created by the most flawed creatures on Earth, people).  Complex natural and unnatural factors have contributed to current levels of greenhouse gases, large and small.  Countless decisions by people, local governments, industries, consumers, and natural environmental patterns have all played a role.

So, how much of an impact has your local gas station had on greenhouse gases?  How about utilities because they use coal instead of natural gas?  Car makers who now sell far more SUV’s than smaller more fuel efficient sedans?  How about us as individuals, as some estimates put annual greenhouse gas emissions for a person at 20 tons.  But, nope.  The blame falls squarely on Exxon and Suncor and nobody else according to Boulder.

Another factor is tobacco use is hardly an integral part of the US economy or our daily lives. This makes it harder to argue energy usage is a nuisance or unreasonable activity.  Look at it this way, almost every American with enough effort and willpower can put out their last cigarette, but nobody can live indefinitely without heating their homes, put kids on a bus or drive to work.  In Boulder’s view, energy companies should have stopped producing their product decades ago even when consumers wanted more and more of it.  Apparently the definition of capitalism has changed.

Not to mention this ignores all the economic benefits energy companies have brought.  Without cars, natural gas to heat homes and fuel to put into Americans gas tanks the economy would not have been as vibrant as it has been, fewer jobs would have been created and America’s role in the world economy would be diminished.

Considering these things what is climate change litigation really all about?  The answer is as frightening as it is simple.  Through litigation, climate change proponents hope to force transportation and power generation toward a low carbon future.  Of course, the more complex issues are the less well suited they are for the courts.  As we have seen on complex issues from immigration to national security, courts have differing opinions, creating a patchwork of rules that do not suit the nation well.  Do we really want this to determine our path forward on energy?

Just an example of said complexity is the success of fracking.  Fracking has brought economic booms to the Dakotas, Wyoming, and relevant to the Boulder lawsuit, Northern Colorado.  Fracking has created many, many good paying jobs while increasing natural gas production to go into energy efficient vehicles and homes.  Gas is increasingly replacing coal production as a means of energy production, and as a result energy emissions in the US have deceased.  Natural gas also facilitates wind and solar power by filling in power generation requirements in their downtime.  But fracking also has its downsides with the chemicals used to break into shale deposits and gather up the gas.  Are fracking companies next on the target list of climate change litigators?

One group that wins out no matter the outcome are attorneys.  One of the firms representing San Francisco and New York has a contract promising them 25 percent of any monies won by the cities.  That is a huge windfall.  Boulder’s firms get a more modest 20 percent.

The odds of such lawsuits succeeding are long.  The Supreme Court has long been skeptical of such lawsuits and generally does not try to dictate policy from the bench (unfortunately the 9th Circuit Court does).  At a climate “tutorial” held last month, a district court judge asked attorneys for San Francisco what caused pre-industrial ice ages and subsequent melting?  Further, the same judge questioned the allegation energy companies covered up climate change research.

There is also a risk for communities suing energy companies.  If the courts find the lawsuits frivolous, the community’s taxpayers could be on the hook for millions in damages.  For example, for Boulder, suing for three times the damages they estimate energy companies have caused makes their climb even steeper.

The rational among us understand energy policy should not be at the whim of the opinions of a few judges and high priced attorneys nor should it be subject to the whims of fluctuating public opinion.  Rather, it should be about scientific understanding, technological advancement, consumer opinions and welfare, economic progress and dynamic economic factors.  Perhaps Boulder, San Francisco and New York, home to some of the best universities in the world, should put their efforts into supporting the outstanding laboratories at the University of Colorado or National Renewable Energy Laboratory and spend less time focusing on a courtroom.