“The proximate-cause requirement confines the judiciary to resolving disputes it is equipped, and sanctioned, to handle.”
—Corbin K. Barthold, WLF Litigation Counsel
(Washington, DC)—Washington Legal Foundation today urged the Second Circuit in an amicus brief to affirm a ruling that declines to move the task of addressing climate change into the courts.
The City of New York is searching for funding for sea-wall construction and other climate-change programs. As part of this search, the City has taken to bringing novel public-nuisance lawsuits. In 2011 the City and others brought such a suit against several electric-power companies. The case went to the Supreme Court, which concluded that the claims before it were displaced by the national environmental policy reflected in the Clean Air Act.
The City has now tried again, this time in a lawsuit against five companies that produce and sell oil and natural gas. The district court dismissed the City’s claims because (1) they are displaced by federal common law, (2) the Clean Air Act displaces any federal common-law claim directed at domestic fossil-fuel emissions, and (3) any federal common-law claim directed at foreign emissions interferes with the separation of powers and the nation’s foreign policy. As the companies comprehensively explain in their brief, the Second Circuit should affirm these holdings.
But even if it could get to the merits of its lawsuit, the City would face many insurmountable obstacles. One such obstacle is the tort element of proximate cause—the requirement that a direct connection exist between the conduct of the defendant and the harm to the plaintiff. In its brief, WLF shows that the causal chain from the production and sale of fossil fuels to the harm raised by the City is too long, too winding, and too tangled to support liability.
WLF also explains why the Second Circuit should not deviate from the traditional proximate-cause rule. Relaxing the proximate-cause standard would create arbitrary and retroactive liability, in violation of the Due Process Clause. Further, requiring proximate causation properly constrains the judicial role. If a court may impose liability on a party only remotely connected to a social harm, avenues open for making sweeping choices from the bench about who should have to spend how much on what problems. A court is neither equipped nor authorized to engage in such central planning.
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