To illuminate a modest living room for three hours a night for two months, you would need about a million lumen-hours of light. Now consider three inflation-adjusted numbers. One: in 1800 a subject of George III could get that much light for around £9,500. Two: in 1900 a subject of Queen Victoria could get it for around £230. Three: by 2000 it cost a subject of Elizabeth II less than £3.
For one thing, Standard Oil happened. John D. Rockefeller was a fanatic. He kiln-dried barrel wood to save the expense of shipping trace amounts of water. He tested whether a drum needed 40 drops of sealant, or whether 39 would do. He relentlessly cut the cost of refining lamp oil. “Unlike the spermaceti candles of decades prior, sometimes wrapped in tissue paper fit for jewelry,” writes Bhu Srinivasan, “cheap tin cans filled with kerosene now allowed the common man to light his home.” These “cheap tin cans” fired the lamps of Britain.
Of course, no one has gained more from American oil than Americans themselves. Oil-powered factories spurred immense economic growth and attracted millions of immigrants. Oil-fueled cars brought a new autonomy to rich and poor alike. Abundant supplies of oil for ships and planes provided a momentous edge in World War II. “More than any other country,” Alan Greenspan and Adrian Wooldridge observe, “America was built on cheap oil.”
Facts like these are scarce in the legal complaints that cities such as New York and San Francisco have recently filed against major oil firms such as Standard Oil successors Chevron and ExxonMobil. In the cities’ telling, these companies are no more than “bad actors” that have “systematically poisoned the Earth.” The bearers of light are merchants of darkness.
The cities seek billions of dollars for sea walls and assorted abatement programs. Their theory is that the companies created a public nuisance—climate change—by selling fossil fuels.
Eight years ago, in AEP v. Connecticut, the Supreme Court ruled that federal regulators’ statutory authority over greenhouse-gas emissions displaces any legal claim attacking such emissions as a federal common-law nuisance. This makes sense. The United States is still a republic, not an oligarchy of lawyers. It is for the popular branches of the federal government to set national policy on issues of national scope.
The cities are trying to avoid AEP by suing producers (rather than emitters) under state (rather than federal) law for global (not just domestic) emissions. But these distinctions change nothing. Suing a producer for someone else’s emissions is no different in effect than suing the emitter itself; state nuisance law is no better than federal for quashing democracy; and neither cities nor courts are authorized to dictate global affairs.
Federal district judges have followed this logic in dismissing New York’s and San Francisco’s lawsuits. Washington Legal Foundation filed an amicus curiae brief in New York’s appeal, and it plans to file one in San Francisco’s.
The problems with the cities’ suits go well beyond the ones the courts have addressed. The Due Process Clause and the Commerce Clause likely bar or greatly curtail the cities’ claims. And the cities cannot establish proximate causation. It would be nearly impossible to disaggregate the oil firms’ actions from other potential causes of changing temperatures in, or sea levels around, a given urban area.
But above all, the cities simply cannot establish a public nuisance. To do so they would have to show that burning fossil fuels has done more harm than good. That is an irredeemably complex assignment.
Assume the cities would have to prove only the net benefit of dropping fossil fuels today. (New York and San Francisco coyly disavow this outcome, although they both call the oil firms’ products an “existential threat.”) Unless we rely heavily on nuclear power—something else activists want to eliminate—it is by no means clear whether we are at present capable of replacing oil and gas with other resources. The cost of renewable energy is dropping, but we probably need better batteries before we can turn entirely to the wind and the sun.
In any event, a centrally planned conversion to renewables would, even under the most sanguine assumptions, be a multi-decade, many trillion-dollar endeavor. And it should hardly need saying that the rosiest assessments are rarely the realistic ones. Those inclined to optimism about a top-down environmental revolution might meditate for a moment on the state of the California high-speed rail project.
A few people would happily just let the lights go out. Lurid modernity is wicked; bring on the blackout. But this is more religious conviction than legal argument. Inflicting mass economic harm today in the hope of averting an unknown amount of environmental harm tomorrow is a leap of faith. Leaps of faith are not proven by a preponderance of the evidence.
It’s not that the cities are necessarily wrong; it’s that they can’t know what they claim to know. Climate change is a serious problem. Even vigorous measures—carbon taxes, new nuclear plants, massive funding for green research—might not prevent calamity. But equally, panic measures—such as a fossil-fuel shutdown—could create more poverty and misery than they forestall. How to proceed in perilous and uncertain circumstances is a question not of law but of politics.
The harnessing of oil is one episode in our great acceleration into the Anthropocene. This ascendance could continue indefinitely. Or it could stabilize. Or everything could end in tears. We all crave to understand where we’re heading. We all want a glimpse of destiny. But every attempt to see the future is occluded by chance, by chaos, by the grand combinatorial explosion.
We can only do our best. Long is the way, and hard, that out of Hell leads up to Light.
Also published by Forbes.com on WLF’s contributor page.