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The left has a long history of demonstrating contempt for the will of the voters, and seeking lawyerly and judicial remedies to problems whenever the American people don’t see things their way. Although this trend goes back to at least the 1950s, judicial activism reached a crescendo in the ’60s and ’70s. It abated somewhat under President Ronald Reagan, but the judicial picks of Presidents Bill Clinton and Barack Obama gave liberals a new window of opportunity to use the courts to achieve their cherished policy goals.
Most recently, we saw this trend confirmed in the many federal court rulings designed to stymie the actions of the Trump administration, especially its various travel bans. Indeed, as soon as President Donald Trump was elected in November, the reaction of many on the left was not to look forward to the next presidential election, when they would have an opportunity to remove him democratically, but to begin exploring legal and judicial means either to deprive him of his powers or of the presidency itself.
It is not just political questions that leftists seek to resolve by appealing to lawyers and the courts, however. Americans will remember that the U.S. tobacco industry came close to annihilation in the 1990s at the hands of a small army of lawyers and state attorneys general who were suing for exorbitant sums. A nationwide Master Settlement Agreement saved the industry – and enriched a great many lawyers. Unfortunately, this encouraged yet more legal and judicial activism.
Now, there is a new front in the left’s lawyerly war on democracy — an assault on energy companies, which, according to liberal lawyers, are responsible for climate change, and thus liable to pay gargantuan sums to atone for the unforgivable sin of supplying energy, derived from fossil fuels, to the American people. Indeed, a new concept has emerged: “climate fraud.” By this logic, the damage to the planet that big energy companies perpetrate, and the consequent damage done to society, now and in the future, justifies the legal and judicial persecution of these companies, and, needless to say, the enrichment of legions of lawyers at these companies’ expense.
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There are several notorious legal firms leading the charge: the Pawa Group (recently absorbed by Hagens Berman) and Cohen Milstein, for example. These firms, in turn, are encouraged by activist groups, ambitious politicians like New York Attorney General Eric Schneiderman, and deep-pocketed moral crusaders with last names like Rockefeller. In 2016, Cohen Milstein succeeded in enticing the attorney general of the U.S. Virgin Islands to pursue a bogus racketeering case against a major energy company, while Pawa is helping to orchestrate the city of San Francisco’s climate change litigation.
So far, thankfully, the courts have not succumbed to legal arguments in favor of climate fraud. This might have something to do with the flawed logic on which these suits are based. After all, Pawa and pals could just as easily sue flatulent cows, or frazzled single moms who forget to turn the kitchen light off at night, for causing climate change. Cows and moms, however, can’t make lawyers rich – a critical distinction.
That climate change is real seems increasingly certain, but the extravagantly apocalyptic assertions about it made by radical environmentalists, on the other hand, are highly dubious. Anyone who disputes the climate change orthodoxy, however, risks personal and professional destruction at the hands of the climate zealots, as we all know. The resulting atmosphere of intimidation is one of many factors giving climate change lawsuits a realistic chance of success.
By launching these massive lawsuits focusing on climate change, the left is tipping its hand: It recognizes that the sort of extreme policies it wants to enact to address climate change will never pass muster with the American voter, and thus will never be passed into law by the states or by the federal government. Leftists are not quitters, though. Their failure to convince voters to support their environmental agenda, which in its most extreme form amounts to the advocacy of national economic suicide, merely motivates them to discover a new route to the achievement of their aims: judicially mandated climate protection.
If radical environmentalists get their way, not only could leading energy companies go bankrupt, potentially putting hundreds of thousands of Americans out of work, but the hundreds of millions of Americans who rely on their products will, at best, pay much more for electricity, gas and heating oil, and, at worst, will find themselves relying on windmills and pedal power to light their homes and transport them to work. This is not a threat that conservatives should take lightly.
Let us hope, therefore, that Trump and the many judges he will appoint to the federal bench will curb judicial activism and throw out these pernicious climate change lawsuits. Then the American people can tackle climate change the right way: democratically.
Dr. Nicholas L. Waddy is an associate professor of history in the State University of New York.
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