The Buckeye Institute released a new policy report on Apr. 9, warning that public nuisance legal theory is being used in lawsuits against energy companies to influence United States energy policy through the courts.
The institute said this trend could have significant economic consequences and shift how national energy decisions are made. The report, titled “Climate Change as Public Nuisance: A Backdoor Scheme to Dictate America’s Energy Policy,” argues that such lawsuits aim to force communities and companies into adopting net-zero carbon-emissions policies without legislative approval.
Rea S. Hederman Jr., executive director of the Economic Research Center and vice president of policy at The Buckeye Institute, said, “The rash of public nuisance climate lawsuits spreading across the nation is a dangerous attempt to use the courts to force communities to adopt net-zero carbon-emissions policies.” Hederman continued, “This effort to impose an ESG agenda through the courts, after failing to do so through Congress, would financially cripple energy companies and threaten the U.S. economy.”
According to the report’s authors, more than 30 lawsuits have been filed nationwide seeking large monetary awards and court-imposed abatements intended to enforce net-zero carbon-emissions rules and environmental, social, and governance (ESG) goals. The authors state that asking courts for such remedies could “turn judges into regulators and effectively impose a net-zero rule on carbon emissions.” They warn these actions could “financially cripple energy companies, inflict significant economic harm, and turn the limited public nuisance theory into a boundless tort action available for economic engineering.” The authors also caution that “Courts should be wary of plaintiffs extending public nuisance theory far beyond its traditional scope,” adding that policymakers may need to act if courts accept these arguments because “the U.S. economy might depend on it.”
Hederman co-authored the report with David C. Tryon; Sai C. Martha; and Aswin Prabhakar.
According to the official website, The Buckeye Institute depended on private funding from individuals, corporations, and foundations. It had offices on Capitol Square in Columbus, Ohio according to its official website. The organization worked nationally but concentrated efforts in Ohio while promoting free-market ideas according to its official website. Its activities included research, data analysis, policy development for free-market principles as well as aiding policymakers with research according to its official website. It was classified as a nonprofit under section 501(c)(3) of the Internal Revenue Code according to its official website.
The broader implications suggested by this report point toward ongoing debates over how best—and by whom—energy policy should be set in America.
