Can State Courts Set Global Climate Policy?

Climate change has been described as a “super wicked” policy problem. Policymakers face profound difficulties in assessing the magnitude of the risks, the costs of potential solutions, and the challenges of collective action. Because climate change is global in scope, the source of emissions is often seen as less important than their overall volume. Yet despite extensive efforts by many countries, including the United States at various times, worldwide carbon emissions continue to rise.Frustration with this state of affairs has led some state and local authorities to pursue climate litigation in addition to legislative or regulatory action. These lawsuits allege that energy producers are responsible for substantial monetary harms; and taken together, they seek many billions or even trillions of dollars in damages. Many recent cases focus on claims that companies misrepresented the effects of fossil fuels on the environment in violation of state consumer protection laws.On October 8, 2025, join us for a panel discussion examining the legal and policy issues raised by these cases, including: • Preemption under the Clean Air Act and federal common law; • Challenges in demonstrating causation and attribution; • Possible implications for First Amendment protections; • Allocation of damages among dozens of energy companies, including state-owned firms that may be shielded by sovereign immunity. • The contributing role of both plaintiffs and other beneficiaries of fossil fuels; and • Whether litigation is likely to help advance efforts to address climate change.
Featuring:

David Bookbinder, Director of Law & Policy, Environmental Integrity Project
Professor Michael Gerrard, Andrew Sabin Professor of Professional Practice and Founder and Faculty Director of the Sabin Center for Climate Change Law, Columbia Law School
Professor Donald J. Kochan, Professor of Law and Executive Director of the Law & Economics Center, Antonin Scalia Law School, George Mason University
Adam White, Senior Fellow, American Enterprise Institute; Director, Scalia Law’s C. Boyden Gray Center for the Study of the Administrative State
(Moderator) Michael Buschbacher, Partner, Boyden Gray PLLC

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
Practice groups. I'm Ny kas Merritt, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of FEDSOCK form programs, become a Federal
Society member today at fedsoc dot org.

Speaker 2 (00:18):
Hello, Welcome to the fedsock Forum webinar call today, October eighth,
twenty twenty five. We are delighted to host this discussion
and titled can State Courts set Global Climate Policy? My
name is Matthew Sattel, and I am an assistant director
of Practice Groups at the Federalist Society. As always, please
note that all expressions of opinion are those of the

(00:39):
experts on today's call, as the Federalist Society takes no
position on particular legal or public policy issues. In the
interest of time, we'll keep the introductions brief, but if
you'd like to know more about any of our panelists,
you can access their full bios at fedsoc dot org.
Today we are fortunate to have as our speakers mister
David Bookbinder, Professor Michael J. Rard, Professor Donald Coachin, and

(01:02):
mister Adam White. We are honored to have mister Michael
Bushbocker as our moderator, mister Buschbaker as a partner at
Boyden Gray PLLC, where he leads the firm's energy and
environmental law practice. One last note throughout the panel, if
you have any questions, please smit them through the question
and answer feature in Zoom so we will have access

(01:23):
to them when we get to that portion of the webinar.
We do ask the questions submitted there both pertain to
the discussion and end with a question mark with fat
thank you for being with us today, mister Bushboker.

Speaker 3 (01:35):
The floor is yours.

Speaker 4 (01:36):
Well, thank you, Matthew, and it is an honor to
be moderating today's discussion about a topic that I think,
in my view at least has received far too little attention.
As the promotional page for this event says, climate change
has been described as a super wicked policy problem and

(01:57):
what does that mean? I think Professor Ricky Lazarus Harvard
has a sort of good discussion of this. He says
it's an area that defies resolution, not only because of
the enormous interdependencies, uncertainty, circularities, and conflicting stakeholders implicated by
any effort to develop a solution, but also because time
is not costless, and while the threatened harms are uncertain

(02:18):
and largely confined to the distant future, the costs will
largely have to be born in the much nearer turn.
I find it helpful in thinking about climate policy generally,
to break things into kind of two groups of climate
policy wonks, the techno optimists.

Speaker 3 (02:36):
On the one hand, and the degrowths on the other.

Speaker 4 (02:39):
The optimists see that we've made a lot of progress already.
Improvements and efficiency, new tech, mitigation strategies and the like
are what they emphasize, and for these folks, innovation and
investment are the key degrowths. By contrast, note that improving efficiency,
lowering costs and the like has a rebound effect that

(03:02):
actually just leads to greater consumption, not to lower emissions overall,
and much of the world is still developing, so on
this view, tech is definitely not a panacea, and what
we need to do is to live more within our
meetings as a species, and this is where you get
the things like plant based diets, public transit, dense housing,
fewer people that kind of rhetoric. So techno optimism is

(03:25):
obviously a more palatable brand for policymakers, and that's often
where Congress and presidents in the global community have put emphasis.
But critics have an easy rejoinder to this, which is
that global carbon emissions keep rising.

Speaker 3 (03:40):
Now, Some like our.

Speaker 4 (03:42):
Current Energy Secretary of Chris Right, have said that as
significant as the challenges from climate change may be, they
are not the biggest challenges we face, not by a
long shot in their view. Matthew Burgess, for instance, has
shown that if we end up with what's called medium
climate sensitivity, in other words, the impact of greater CO

(04:03):
two in the troposphere is either neither extreme nor negligible,
somewhere in the middle, and were likely to have warming
around I think one point five degrees celsius fly twenty
one hundred, which is hardly a catastrophe. But not everyone
has the same risk tolerance about the sensitivity of the climate,
or the same optimism that some policymakers like Chris Wright

(04:25):
do about tech reducing emissions, and that includes many blue
state attorneys general and blue city law departments. These folks
generally can't make the law, but they have the authority
to enforce it, and Over the last few decades, a
cadre of creative lawyers, with help from donors and centers

(04:47):
like the Stave and Center at NYU, have sought to
leverage that law enforcement authority to take energy companies to court,
alleging that these companies production, marketing, and sale of fossil
fuels has approximately caused various climate injuries. That means things
like increased flooding, hurricanes, and the like. And these suits together,
and there are dozens of them, seek billions and by

(05:09):
some accounting even trillions of dollars in damages, and they
advanced two main theories of liability, public nuisance and consumer protection.
The nuisance theory identifies the production and sale of fossil
fuels as a kind of pollution that energy companies need
to pay for and abate. Consumer protection theory gets to

(05:30):
the same place in the end, I think.

Speaker 3 (05:31):
But in a little bit more roundabout way.

Speaker 4 (05:33):
It's more like the climate It's more like the tobacco
litigation of several decades ago. And this theory claims that
energy companies knew about the risks of climate change and
shows to mislead or downplay those risks to the public
in order to increase consumption of fossil fuels and make
a profit. Now, while climate litigation like this has been
going on for a long time, most of it has

(05:55):
been most of the last several years have been focused
on preliminary issues, things that are classic fedsock topics like
federal officer removal and things like that, but that are
perhaps a bit removed from.

Speaker 3 (06:07):
The actual policy implications.

Speaker 4 (06:09):
But now the courts are rolling around to actually getting
to deciding things on the merits. Some recent state court
decisions have held that these claims are preempted or precluded
by federal law.

Speaker 3 (06:22):
Specifically, they've held that one common law.

Speaker 4 (06:25):
Is the exclusive avenue by which a state can seek
damages arising from out of state emissions, and two that
the Clean Air Act provides a comprehensive legislative regulatory regime
that displaces federal common law, and that this means that
states are simply left without a cause of action for
trying to police out of state emissions. The argument on

(06:47):
the other side is that the Clean Air Acts displacement
of federal common law actually opened up the door to
state regulations regulation of out of state emissions because the
legal standard for displacement preemption are different. That's one big
question here, but many others remain open as well. For instance,
how can you show proximate causation and injury? Bad weather

(07:09):
is of course not new, so how do you show
that emissions from company X cause injury Y from a
hurricane or whatever? And how do you show that the
fossil fuels wouldn't have been consumed anyway? Indeed, I think
every state in the Union requires in some circumstances the
sale of natural gas, which is used to generate electricity,
heat homes, and run appliances in the lay. There are

(07:33):
also constitutional questions, particularly under the First Amendment, whether consumer
protection theories here run into a free speech problem.

Speaker 3 (07:43):
And then there's the practical problem of how to allocate damages.

Speaker 4 (07:46):
State owned companies, for instance, are protected by sovereign immunity,
so you know, the China.

Speaker 3 (07:52):
National Petroleum Corporation.

Speaker 4 (07:55):
Is not a defendant in I think any of these suits,
but they're oil and gas contribute to global emissions the
same as anyone else's. And ultimately, the biggest question I
think is if these suits are successful, will they reduce
global carbon emissions or will it just be a payday
for contingency fee lawyers, an opportunity for.

Speaker 3 (08:14):
Virtue signaling from progressive politicians.

Speaker 4 (08:17):
These issues and more have been debated extensively already, and
we have a truly outstanding panel of experts here to
discuss these things in classic federalist society style, to have
real differing viewpoints, and I'm very much looking forward to
this discussion. Katy us Off will beet Professor Michael Gerard,

(08:39):
who is the Andrew Saban Professor of Professional Practice and
the founder and faculty director at the Saban Center.

Speaker 3 (08:44):
For Climate Change Law at Columbia Law School.

Speaker 4 (08:47):
Professor Gerard is not just a leading theorist, He's a
real practitioner with a distinguished environmental litigation record from his
time as a partner at Arnold and Porter in New York.
Then we'll hear from Professor Donald Coachin, who's Professor of
Law and executive director at the Law and Economics Center
at Antoninskleia Law School at George Mason University. Professor Coachin

(09:07):
is a prolific and off cited scholar. He's a member
of the American Law Institute and an expert on property
law and natural resources and environmental law.

Speaker 3 (09:16):
Law and economics and many other topics.

Speaker 5 (09:19):
Well.

Speaker 4 (09:19):
Then here from professor from David Bookbinder Sorry, who is
currently the director of Law and Policy the Environmental Integrity Project.
Before that, he was a top climate lawyer at the
Sierra Club, where he was a part of the team
that brought and eventually won one of the biggest climate
cases in US history in Massachusetts versus EPA. He also

(09:41):
worked at the Office of the Massachusetts Attorney General and
at Paul Weiss until this just cracked me up when
I read it in his bio. He got tired of
litigation where the result was a wire transfer from Entita
to ENTITB. And last we'll hear from Adam White, who's
a senior fellow at the American Enterprise Institute, the director
of Scholia Law's see Boyden Gray Center for the Study

(10:03):
of the Administrative State.

Speaker 3 (10:05):
The Boyden connections run quite deep with Adam.

Speaker 4 (10:08):
He was previously previously a partner at my firm, Boyden
Gray PLLC. And he's one of the leading conservative administrative
law scholars out there, And among many other accomplishments, was
selected by President Biden to serve on the Presidential Commission
on the Supreme Court where he criticized court packing. So
the format today will be will give about eight or

(10:28):
so minutes for each of the panelists to give opening remarks.
I'll then give an opportunity for them to respond to
each other before we go into a moderated Q and A.
I'll have some questions of my own, but as Matthew mentioned,
please put your questions in the chat and I will
get to as many as I can.

Speaker 3 (10:44):
And with that, Professor Gerard Flora is yours.

Speaker 6 (10:47):
Thank you very much. Let me try to share my
screen here. Okay, how does that look?

Speaker 3 (11:09):
Okay?

Speaker 6 (11:11):
So the Saving Center has a website which with a
database that attempts to have all of the climate change
cases in the world, both in the US and abroad.
Just last week we changed the platform for to an
AI based platform, so all more than three thousand cases
and fifteen thousand accompanying documents are searchable and searchable in

(11:35):
various other ways on this database that is free for
all to use. On a global basis, we see that
climate change litigation really took off around two thousand and seven,
and you can see in green are the US cases
and in orange or the cases elsewhere in the world.
The US is by far the champion, if you want

(11:57):
to call it that, in climate litigation. We have about
two thirds of all the world's climate cases at latest account,
almost two thousand climate cases in the US. Of the
cases in the US, by far the largest number are
under either the National Environmental Policy Act or its state equivalents,

(12:18):
mostly California concerning environmental impact review, a lot of cases
under the Endangered Species Act, the Clean Air Act.

Speaker 3 (12:27):
And other laws.

Speaker 6 (12:28):
Only a very small fraction of total US cases are
the common law and related claims that we're talking about,
but those get a great deal of attention. Of the
common law cases, the most important in some ways was
this lawsuit that was brought in two thousand and four
by Connecticut and several other states against several power companies

(12:51):
seeking an injunction that they reduced their greenhouse gas emissions.
That case ultimately went up to the Supreme Court. It
had been brought under a federal common law of nuisance theory,
and the Supreme Court said that the federal common law
of nuisance is displaced by the Clean Air Act. They
left open the question of whether the state common law

(13:13):
could apply. There was simultaneously another case pending brought by
the village of Kivalina, Alaska, seeking not an injunction which
the American Electric Power case was seeking, but money damages,
and the Ninth Circuit ruled that the American Electric Power
rule applied to money damage cases as well. So nothing

(13:35):
much happened until twenty seventeen when we saw the first
of a wave of lawsuits brought under state common law theories.
My latest counts there are about thirty three of them.
They're not brought under federal common law nuisance. The Supreme
Court has ruled that out. They're brought under state public

(13:57):
and private nuisance, negligence, trust, pass products, liability, and consumer
protection theories. The major oil companies are the defendants, and
most or all of them, plus the American Petroleum Institute.
They seek compensatory damages, although not enumerated equitable relief, including

(14:21):
a fund to pay for adaptation and mitigation. Some seek
punitive damages, Some seek discoorgement of profits and attorney's fees.
The one case that was brought initially of this group,
that was brought initially in federal court rather than state court,
led to a second Circuit decision finding that these state

(14:44):
law cases also may not proceed. Three of the cases
have reached their state's top court, and in all of
those the cases have survived the motions to dismiss In Massachusetts,
the Massachusetts Supreme Judicial Court allowed that case to proceed.

(15:08):
Further motion practice is anticipated and discovery is now underway.
The City and County of Honolulu sued the Hawaii Supreme
Court up held that there was a major effort by
the defendants to seek Supreme Court review. The Supreme Court
denied sert. Several motions for partial summary judgment have been

(15:30):
filed and discovery is underway there.

Speaker 3 (15:33):
And most recently in bolder Boulder.

Speaker 6 (15:36):
County case, the Colorado Supreme Court filed a case which
has survived the Colorado Supreme Court and a certain petition
was filed there in August. A lot of activity in
the lower courts, as you can see, Several of the
cases here in the lower courts have been dismissed.

Speaker 3 (15:58):
Almost all of those are being appealed.

Speaker 6 (16:00):
The Maryland Supreme Court just on Monday heard argument in
the cases brought by Baltimore, Annapolis, and.

Speaker 3 (16:07):
Ann Arundol County.

Speaker 6 (16:09):
There are other cases as you can see, that are
brought by these other cities and states and counties, and
most of those are being appealed. In several other cases,
the trial court denied the motion to dismiss, and in
most of these the other side is appealing. So these

(16:29):
are all very active cases. In a couple of the cases,
they were bought in state court, the defendants removed to
federal court and they've been remanded back to state court
City of Chicago, and most recently a couple of weeks ago,
the state of Maine. And then there are some new
cases where we don't have any decisions yet, from the

(16:50):
state of Hawaii, from a town in North Carolina, and
the estate of a woman who died in heat wave
and is claiming that was caused by my climate change. Now,
a lot of issues come up in these cases, but
there are some facts that nobody is contesting in any
of these cases. Nobody is contesting in these cases that

(17:12):
fossil fuel emissions are contributing to climate change, or the
climate change will have negative impacts. There's a lot of
contestation as you've heard about just how negative they're going
to be, but nobody's arguing they don't have negative impacts.
And general agreement that the Intergovernmental Panel on Climate Change
is an authoritative source on climate change. Some of the

(17:35):
issues that are contested, as I say, whether they're in
state or federal court, has pretty much been decided in
state court. As you've heard that, probably the number one
defense we're hearing is that these cases are preempted by
the Clean Air Act. Now, of course, the Trump administration
has proposed to revoke the endangerment finding, which is the

(17:57):
legal basis for EPA action under the Clean Air Act,
And if that action goes forward, there will be strong
arguments that the preemption defense no longer applies since the
Clean Air Act no longer applies to greenhouse gases. There
are arguments that the Foreign Affairs power preempts questions about

(18:20):
the ability to impose liability for out of state conduct,
availability of joint and several liability. I don't have time
to get into it, but there are a large number
of legal issues that arise addressing whether there is liability here.
And there's an even larger number of factual questions that arise.

Speaker 3 (18:43):
Who cause what damage?

Speaker 6 (18:45):
How much of the climate change that we know is
happening is caused by natural variability versus anthropogenic climate change?
How would we divide up the damages, many many issues
that are yet to be litigated. If any of these
cases do get to trial, I think we will see
very serious litigation about them. Well, I think my eight

(19:07):
minutes are up, and I look forward to the further discussion.

Speaker 3 (19:10):
Thank you, thank you, Professor Kuchin.

Speaker 7 (19:15):
Great, thank you so much for those introductory comments. I
think you've set the stage well, Professor Gerrard, And I'm
going to try to outline a few different buckets of
concerns that were highlighted already I think in the opening,
but perhaps i'll go a little deeper on some of them.
One thing that I think is important to highlight is
the trajectory of these claims. As was mentioned, ap versus

(19:37):
Connecticut shut out the possibility of bringing claims based on
federal common law, and there was a quick pivot by
the plaintiffs in these cases to start bringing cases instead
based on state law claims. And that's really why you
see this evolution over time as a reactive evolution, depending
on how the courts are viewing things. Originally, there were

(20:00):
cases being filed in state and federal courts based on
these state law claims, but I think that the federal
courts started to acknowledge some reservations about hearing these cases,
including key decisions coming out of New York and coming
out of California and some other federal courts that indicated
less willingness to perhaps allow these cases to go forward

(20:23):
and arguing some of those same kind of problems or
identifying some of those same kind of problems that were mentioned,
including whether or not AP versus Connecticut should extend to
state law claims. Consequently, the plaintiffs have been creative and
effective at bringing state law claims in state courts, and

(20:43):
so just the one maybe a missing part of the story, then,
is this trajectory and also the attempt to remove many
of these cases based on the federal concerns associated with
them by the defendants in these cases. And so there
was a period of time in which these cases lagged
because of this inability to determine where exactly they were

(21:05):
going to be hurt on the merits, and those cases
were ultimately the Supreme Court did not that most of
those cases that were removed were demanded, and then the
Supreme Court refused to hear any case on those reman motions,
and ultimately that led to an understanding that these cases
would stay in state court, and ultimately that's because federal defenses,

(21:26):
except for a few areas of exceptions, do not allow for.

Speaker 3 (21:32):
I cannot be used as a base for removal.

Speaker 7 (21:34):
So the plaintiffs have been very effective at keeping the
four corners of their complaints focused on state law issues
rather than identifying the key federal issues that are necessarily
going to come into play in these cases. So I
think it's important to at least understand why these cases
are not ending up in federal courts. Second bucket of

(21:55):
concerns is about the scope of these claims. Public nuisance
as a tort was meant to be something which controlled
things like blocking the public roads and other ways in
which there was an actual interference with some kind of
land based concern, and not to be an avenue or

(22:15):
a vehicle for any kind of public right to be
asserted or any kind of public health issue to be asserted.
And so we can have a further discussion on what's
the appropriate scope of public nuisance, but we are seeing
the courts being asked to essentially legislate in this field
as a result of the claims, rather than to be
acknowledging a pre existing cause of action. In addition, the

(22:37):
consumer deception claims have been being added in part because
I think a recognition of the weakness of the public
nuisance claims and the consumer deception claims have their own
issues as to whether or not they fit within the
purposes of the statutes and also again meet the evidentiary
requirements of proof for unique and knowledge that was kept
away from the public in these cases.

Speaker 3 (23:00):
Finally to the scope of the claims.

Speaker 7 (23:02):
It's important to think about this in relation to products
liability because although Professor Girard mentioned that products liability is
sometimes pled in these cases, the alternative causes of action
are sometimes designed to get around the strictures of products liability,
which itself was a kind of compromise in the tort
law system to allow for a certain increased amount of liability,

(23:25):
but with protections for levels of proof, and so the
elements of public nuisance and consumer deception and others do
not require that the planets meet the strict levels of
proof and products liability, and so again there some pleading
sort of manipulation here as an attempt to get around

(23:46):
some of the traditional moorings of the law. The next bucket,
which I'll probably skip past in the nature of time
is just to understand we have to be asking ourselves
what's the appropriate role of courts? Given the wicked nature
of this and the complexity of it all that was
presented at our moderators opening, One question is are courts
even capable of handling these issues either as a claim

(24:11):
resolution matter or even as an evidentiary matter when there
are so many complex factors and the need to balance
those factors against the trade offs and economic growth, the
trade offs and consumer welfare that can come from increased
liability for this important activity in the energy sphere, and
those are the kinds of decisions we normally commit to
the legislative branches and or to regulatory policy rather than

(24:34):
to litigation. And another reason why we should lean heavily
on Congress and what Congress has already said and what
Congress is capable of doing in order to resolve climate issues,
rather than expecting the courts to do that. The courts
are also ill suited because of the complex nature and
scope of the potential contributors to this normally require that

(24:56):
tort suits go against actual tort feezers and that they
are liable only for their contribution to the overall effect.
Here we have a few people amongst trillions who are
contributors to climate change effects that are being singled out
as the ones who should be paying for the bills
of these projects which are going to be funded as

(25:18):
a result of the lawsuits payouts, And that is not
normally what we expect the tort system to be accomplishing
that kind of wealth redistribution for purposes of funding public programs,
but instead we again look to the legislatures and regulatory
bodies to do so. They're also ill suited because this
is backward looking and retroactive. These are not things which
could have been anticipated as liabilities on the part of

(25:41):
any of the defendants in these cases, and as a consequence,
they were unable to adjust their behavior. The entire reason
to use torts is to allow people to predict what
their liabilities might be so they adjust their behavior accordingly
and react, and that also cannot be done when you
are providing retroactive liability, which also creates due process and
rule of law problems. There also do process problems with traceability,

(26:04):
causation and attribution issues here, which ultimately will need to
be litigated, and we're kind of at the end of
Professor Girard's mentioned that once we actually get to the
merits of these cases are past the sort of initial
motions to dismiss, those will need to be determined, and
it's very difficult to trace specific harms in specific communities
to specific defendants, again showing why litigation is not perhaps

(26:27):
the appropriate tool.

Speaker 3 (26:29):
I'll end my.

Speaker 7 (26:29):
Last because I only have a few seconds here to
mention on the preemption point, which I think we should
discuss more in the Q and A. Is that AP
versus Connecticut did leave open a hole. I think the
Boulder case is an opportunity for the Court to take
and resolve that the Court is eventually going to have
to resolve what did AP mean for state law claims.
They're going to have to do it someday, so they
really should do it sooner, rather than allowing these cases,

(26:51):
as many of them are seeming to do, proceed to
be very costly litigation, and instead give a clear answer
one way or the other as to whether or not
these things are preempt I do not think that the
endangerment finding going away should have any impact on the
preemption finding, because Congress also has the ability to choose
not to regulate in the space. And the Clean Air
Act itself is making choices which kinds of pollutants it

(27:14):
wants to control, which kinds of emissions it wants to control,
and which ones it is not. And you know, if
I choose not to decide, I still have made a
choice that should be part of congress Is prerogative and
or the Executive's prerogative as to their discretion as to
which kinds of activities they want to pursue. That does
not mean that it leaves the gate open for states
to fill some kind of void. And so I think

(27:36):
that's a dangerous argument that would help I would allow
for a lot of preemption to get swallowed up and
is not particularly persuasive.

Speaker 3 (27:44):
But we can talk about that and more reasons why
and when we get to the Q and A. So
I'll stop there. Excellent.

Speaker 4 (27:49):
I always like it when there's a good rush quote
that appeals to my eighteen year old self very much,
mister fookfinder off to you.

Speaker 8 (27:59):
Okay, First, let me disclose that for many years I
was part of the legal team representing the City of
Boulder Boulder County in that case, and there was we
had a companion case San Miguel County and poor San
Miguel County keeps getting overshadowed by Boulder. So I am

(28:23):
still privy to the UH, to the communications and deliberations
of the legal team, but I no longer take an
active part in the case. And right now the Supreme
Court has asked Boulder to respond to the Cerve petition.
The initial response was to waive responding to it. The

(28:46):
Court has asked for response and my h, my former
colleagues are are quite busy on it and it gives
me an even longer list of emails to ignore on
a daily basis.

Speaker 3 (28:57):
Let me, let's take this back to you.

Speaker 8 (29:00):
Why these cases are brought.

Speaker 9 (29:04):
We have climate change.

Speaker 8 (29:05):
All the defendants have admitted the climate change is real.

Speaker 9 (29:09):
You ought to read there.

Speaker 8 (29:10):
If you want to see something really interesting is you
should read their securities disclosure where they are falling all
over each other to talk about climate change. Yes, it's real,
and our products contribute to it. So we have increased
government costs as a result of climate change.

Speaker 9 (29:28):
That is the issue.

Speaker 8 (29:29):
And I can tell you that for even a small
plaintiff like Boulder, there are increased wildfire prevention in increased
wildfire fighting. There is an issue of making sure there
are adequate water supplies. There are small things like all

(29:53):
of a sudden, Boulder has to air condition it's schools
because now in September they have temperatures in the nineties.

Speaker 9 (30:01):
They never had that before.

Speaker 8 (30:03):
So it's everything from very small things to very large
things that are affecting local governments. The largest one is,
in fact, most roads in Colorado counties are dirt roads,
and when you get increased freeze thaw cycles, you get
much much greater destruction of those roads. And I believe

(30:26):
that might be the single biggest cost that Boulder County
is looking for, if I remember correctly. So these are
basic government services that local governments are now trying to
figure out how do we pay for the increased cost
of these We can either tax our local citizens or

(30:48):
we can try to get compensation from the producers. And
here's what they.

Speaker 9 (30:55):
Think of it. And look at it this way. You
have a defendant.

Speaker 8 (31:00):
The defendant makes a product, and at some point they
become aware that their product is going to have tremendous
adverse consequences. Not initially, certainly, not when you know they're
putting petroleum parking products on the markets in the nineteen
twenties or thirties. But at some point they become aware that, yes,

(31:24):
what we're making is going to cause huge problems. At
that point they do one of two things. They either
say absolutely nothing and simply conceal their knowledge, or they
go out and actively mislead the public about it.

Speaker 9 (31:40):
So that's the situation.

Speaker 8 (31:42):
And by the way, whether or not they say nothing
or actively mislead the public, at the same time, their
business plan is to increase the production and use of
the products that they know.

Speaker 9 (31:55):
Have terribly adverse consequences. So give it that.

Speaker 8 (32:00):
I can understand why state and local governments confronted with
these increased costs are going, Okay, let's go to court
and see if we can be compensated for our increased costs.
And it's interesting to hear a lot of conservative and
libertarian economists and lawyers arguing that, you know, tort law

(32:21):
is not the remedy, when for decades that community of
law professors and lawyers said, don't regulate, don't legislate, the
only way to deal with pollution is through common law
tort liability. But that was the way to deal with it.
And now that it is being addressed that way all
of a sudden. No, no, no, we didn't really mean that.

(32:45):
When it comes to top common law liability, it's not
two things. One, all liability is retroactive. There's no such
thing as, you know, non retroactive liability. You did something
and now you pay for it, So all ability is retroactive. Secondly,

(33:05):
is the issue of oh, these defendants are being singled out. No,
they're not, because essentially the tort liability is an indirect
carbon tax. You sue an oil company, an oil company
is liable, the oil company then passes that liability on
to the people who are buying its products. In some sense,

(33:27):
it is the most efficient way. The people who buy
those products are now going to be paying for the
cost imposed by those products. I prefer an actual carbon tax,
But if we can't get one of those, and I
don't think anyone on this panel would agree that Congress
is likely to take on climate change anytime soon, So

(33:50):
this is a rather somewhat convoluted way to achieve the
goals of a carbon tax. The people who use the
products pay for the damage that they cause.

Speaker 9 (34:03):
The results if the plaintiffs start winning are interesting.

Speaker 8 (34:12):
I think It's one of the scenarios that has come
up is simply once the first plaintiff gets a final
non appealable judgment, no one else gets paid because every
defendant in all these cases immediately declares bankruptcy because I
have to If let's say Oakland wins final non appealable judgment,

(34:36):
the next to imagine, every jurisdiction in California files the case.
All they have to do then is, you know, all
the legal issues are decided. The only question is how
much are their damages. So I think the defendants in
these cases are aware of what would happen, and that

(34:57):
they have two strategies. One would be, if this looks
like it's going to happen, go to Congress, get immunity,
get immunity in exchange for carbon tax I think that's
a scenario that they have actively considered. If they don't
succeed at that and these you know, we get final

(35:18):
non appealable judgments, all these companies declared bankruptcy.

Speaker 9 (35:22):
Those assets will continue to produce. There's no doubt in.

Speaker 8 (35:26):
Anyone's mind they're not going to you know, you go
to bankruptcy. In the bankruptcy court, its job is to
make sure that the assets are then used for the
benefit of the creditors. Those assets will continue to produce
oil and gas will not suddenly stop coming on the market.
They'll be marketed in different ways because there ever buys
those assets.

Speaker 9 (35:48):
We'll start out by saying on day.

Speaker 8 (35:49):
One, Hi, I'm Bob's oil company, and let me tell you,
every time you pump a gallon of the stuff, you're
going to be causing real bad problems. And we admit
that right up front, and we're going to put a
dollar figure on the cost of these products to make
sure that we can pay for the damage that you

(36:11):
are causing when you use our products.

Speaker 9 (36:14):
So that's what you know.

Speaker 8 (36:16):
That's my basic view of how these cases are unfolding.
Two things I want to say. First of all, I
don't think it was a quick pivot from aep which
has decided in twenty eleven to the first of the
state law cases, which was in twenty seventeen.

Speaker 9 (36:35):
I think it was a rather slow pivot.

Speaker 8 (36:39):
And I think that I think only one case was
initially filed in federal court. That was the City of
New York case, and that was because if you've practiced
in New York state courts. You know that the case
is going to take fifteen years regardless. It's just the

(37:00):
way New York state courts are for this kind of litigation.
And I think New York's consideration was, we don't even
want to be trying to pursue a defendant in our
state courts, so let's just try bringing a state court
a state law claim in federal court.

Speaker 9 (37:19):
The last thing I want to mention, and.

Speaker 8 (37:21):
If I've gone over my time, please forgive me, Michael,
is the if endangerment, the endangerment finding is successfully repealed,
then Connecticut versus AEP is effectively overturned, and it brings
back it brings back federal common law. It may bring

(37:45):
back federal common law. Madam, you're shaking your head. I'd
really be interested. I mean, this is just kind of guesswork.
Depending how endangerment is taken away and what the courts
say about it, it could I'm thinking it could bring
back federal common law, and then that would displace the
state comma. Well, it's a it's a mess. I'd love
to hear what you have to say about that. So anyway,

(38:08):
the whole thing is incredibly complex and convoluted. And then
as uh, you know, Professor Coaching and Michael talked about
the proof issues down the road are massively complex. So
with that I will I'll stop pontificating and turn it
over to Adam.

Speaker 3 (38:30):
Thanks David.

Speaker 5 (38:31):
I didn't meant to vigorously like shake my head in disapproval.

Speaker 3 (38:37):
It's totally been. It's a question I don't know if
the renewable fuel standards, so you know the.

Speaker 5 (38:44):
Well, so to Stavid when when when I was working
with Boyden, David was working with Boyden too, and so
this this feels like a family reunion in many ways.

Speaker 4 (38:54):
Uh.

Speaker 5 (38:55):
Look, I'm not nearly the subject matter expert that the
other three.

Speaker 3 (38:59):
Panelists and our moderator are.

Speaker 5 (39:02):
I'm grateful to be part of the conversation because I
find these issues very interesting and challenging in many ways,
and I think I'm going to dedicate most of my
remarks to highlighting four sort of interesting, complicating factors that
I'm just sort of watching as this case and the
many others play out. But I'll just put my priors

(39:23):
out there. First of all, just watching this case and
some cases like it, I've always thought that the main
issues were straightforward, and I thought the second Circuits decision
in the New York case got it right. That at least,
going back to the City of Milwaukee case in nineteen

(39:44):
eighty one, and obviously with antecedents far before it, there
has been it's been pretty well settled in the Supreme Court.
The questions of public nuisance, particularly with environmental harms under
related to both water and air, are generally governed by
a system of federal common law, which I'll get back

(40:05):
to in a second.

Speaker 3 (40:07):
That I thought that made it pretty straightforward.

Speaker 5 (40:10):
I agreed with the AEP decision, the unanimous decision, saying
that the Clean Air Act displaced the federal common law
in the context of global climate change. And so for me,
that's a pretty straightforward sylogy that any state laws touching
on interstate nuisance on these issues would be displaced by

(40:30):
the federal common law, which in turn was preempted by
federal common law, which in turn was displaced by the
balances struck by the legislation of the Clean Air Act. Again,
I think the Second Circuit was right, and where I
started shaking my head at the end of David's remarks,
my friend David's remarks, it's something I've been watching really

(40:53):
closely how the Trump administration would frame and phrase its
rollback of the Engagement Finding, because I do think that
a rollback of the Engagement Finding depends on how it's
phrased and framed, and not just nominally, but really in substance,
I think could have an impact on these legal issues.
But I think by my reading of the Notice of

(41:14):
proposed rulemaking so far on the Engagement Finding rollback, I
take the Trump administration to be saying that they are
not disputing the underlying statutory interpretation right that the Clean
Air Act itself does you know, pursue it to Massachusetts
versus EPA, that it does.

Speaker 3 (41:37):
Touch on.

Speaker 5 (41:39):
Climate change because it treats the statute treats greenhouse gas
emissions as a pollutant. The Administration, I don't think is
disputing that at this point. I think they're simply saying
that the factual record as they see it does not
reach the level of endangerment. So it's not a dispute
that the Clean Air Act touch on greenhouse gas emissions.

(42:01):
It's that the Clean Air Acts factual predicates haven't been
triggered visa the greenhouse gas emissions.

Speaker 3 (42:09):
I know. That's to say the least a hugely disputed question.

Speaker 5 (42:13):
But I think so far the tru administration has been
careful in avoiding the notion that what it's rolling back
is not just the endangerment finding but also in effect
Massachusetts versus EPA. So I don't see the enagerment finding
so far as really affecting the legal analysis here. But
I don't want to oversimplify the issues here. To be

(42:35):
really clear, here, we live in a federal government of
fifty states, a federal system, and we should be very
very wary of glib preemption of state laws. The states
are the building blocks of our government from the ground up,
and so we shouldn't take that lightly. We also, especially

(42:56):
for a conservative like me, should be very very wary
of legal doctrines like the dormant Commerce Clause, which are
not written explicitly in the Constitution. Now, I will say,
and this goes way back to the first stage of
my legal career, where I was an energy lawyer at
Baker Bots working on federal natural gas issues. I've I've

(43:19):
always been convinced, even before I was getting paid to
agree with this point, that that that that federal law
largely preempts state regulation of a lot of these interstate matters, uh,
and that the dormant commerce clause, while not explicit in
the Constitution, UH, is there. And so I'm I'm instinctally sympathetic,

(43:39):
I'll say, to the preemption of dormant commerce clause arguments
undergirding all of this.

Speaker 3 (43:45):
But I don't think we should do that lightly.

Speaker 5 (43:46):
I think we need to be very careful, especially conservatives,
We should be very careful with these sorts of doctrines.

Speaker 3 (43:51):
And we also, by the.

Speaker 5 (43:52):
Way, should be very very wary of the predicate of
the Milwaukee case, the notion of federal common law. Right,
going all the way back to the eerie case we
all study in our first year of law school, the
baseline assumption is that there is not federal common law
in general to the extent it still exists. It's an exception,
it's an exceptional doctrine. And so we should think of

(44:14):
the Milwaukee decision as exceptional, and we shuld always be
very careful about extending it. Okay, So I generally agree,
like I said, with the Second Circuit case, I think
the Second Circuit got it exactly right.

Speaker 3 (44:27):
But I don't. I don't, I don't. I'm trying not to.

Speaker 5 (44:30):
Be glib here, and I'll encourage our viewers, wherever they
are on these issues to be very careful not just
with disagreeing with me, but with agreeing with me. These
are very complicated issues. And speaking of complications, here's the
four complications that I am watching as this plays out now,
especially now we've reached the Supreme Court. I thought of

(44:51):
the past the Supreme Court might pick up a case
like this. I wrote an op ed urging them to
take an earlier iteration of this case on the removed
whole question.

Speaker 3 (45:02):
Uh they didn't. They needles say, they didn't take it up.

Speaker 5 (45:06):
I wonder now if the issues haven't crystallized enough, especially
in this case, to make it really ripe for a
Supreme Court review, especially in light of the Trump administration
Justice departments uh brief.

Speaker 3 (45:18):
I'll be very curious to see what what the City
of Boulder says.

Speaker 5 (45:21):
The four complications I'm watching are this, first of all,
federalism and the interstate and and and interstate commerce. We're
right on the heels of the National Coort Producer's case, which,
as an iowin, still hurts.

Speaker 3 (45:33):
Me to my very core.

Speaker 5 (45:34):
Uh, the idea of California regulating those those fine, those
fine you know, assault of the earth farmers.

Speaker 3 (45:41):
In my home state of Iowa.

Speaker 5 (45:43):
The Supreme Court has has long been wary, and I
think in some ways increasingly wary of the dormant commerce Clause.
And they've been increasingly open to states having a pretty
big footprint in national policy making. And I'm very curious
to see if that trend continues here, if the Court
takes up this case. My second complication here then I'm

(46:06):
watching is related to that one. It's that on questions
of federalism, preemption dorman commerce clause undergirding these issues, we've
seen the states speak in terms over and Oregon, of
the doctrine of equal dignity or equal sovereignty. The states
have increasingly framed these issues not in terms of the

(46:29):
national federal government's power over the states, but the states
interests visa vi one another. They invoke cases like Franchise
Tax Board versus High from twenty nineteen and cases going
back a century on the doctrine of equal state dignity,
equal state sovereignty. And I'm curious the extent to which
the Supreme Court will pick up that notion, because I

(46:52):
think that is a slightly different spin on the old, familiar,
dormant commerce clause arguments we've seen, which have been assertions
of federal power over the states. Now we have states
pushing back against other states to defend their own sovereign interests,
their own what they frame as dignity, and I'm very
curious to see the extent to which the Supreme Court

(47:14):
picks up that thread. The third complication I'm watching is
the gravitational pull that our modern era of regulatory whiplash
has on this case. As David pointed out, we're now
in the era of the tru administration rolling back the
Endangement Finding, just as it's trying to roll back what

(47:36):
almost thirty other policies from the Biden administration the Obama administrations.
We live in this regime change era of politics. For
each new administration, whenever we see a party change comes
with comes in with an enormous regulatory or deregulatory agenda
triggered by a flurry of executive orders. It's enormously destabilizing

(47:56):
for all of us, for companies, for individual rules, for nonprofits,
for state governments, for everybody. And so much of this
litigation is in the shadow of these enormous policy whiplashes
from one administration to the other that I think is
largely fed by the lack of clarity and specificity and
the underlying federal statutes. I think the Supreme Court increasingly

(48:19):
recognizes that at the federal level this is enormously destabilizing
and demoralizing to all of us. And I'm kind of
curious to see how the Court takes those sorts of
considerations in Obviously it's not front and center in the case,
but it looms over all of this, and I'm curious
to see how the Court channels its interest in legal

(48:39):
certainty and predictability into this kind of litigation. And then
the last, and I'm sorry for going on for so long,
the last question or complication is what I call federalism
and real politique. For US lawyers, it's easy to get
pretty you know, pretty specif pretty quick to take these

(49:01):
cases one slice at a time, and very discreete cases
and very discreete legal issues. But of course they're occurring
against a much larger political and legal backdrop, and I'm
curious to see the extent to which those implicit background
questions are brought explicitly into the case by the litigants
or even by the justices. Some of the examples we've

(49:22):
already heard in this what's the relationship between these these
cases and state law and the AEP decision which took
the federal common law claims off the board? Will the
justices see this as simply an effort to re litigate
the basic disputes that were that were originally sought to

(49:43):
be litigated under federal common law. Oftentimes the litigators in
these cases their worst enemies are their own friends, the
politicians and others who speak much more broadly and sweepingly
about these cases than the lawyers themselves do. I've noticed
that that's not so how much the case here. City
of Boulder has been very careful, I think in their

(50:04):
public statements, or at least very precise in their public statements.
They really have over and over again framed this in
terms of local impacts, and I think that's for an
advocate for these it's exactly the right way to think
about these things. I think in New York and more broadly,
the rhetoric has been a bit more sweeping, not just

(50:24):
from the governments and the politicians, but also from some
of the outside groups. We've seen groups like Arabella Advisors
and others really cite these cases as dovetailing with the
broader effort to bring political and legal pressure on corporations
through shareholder votes and through the risk of liability. I

(50:45):
think it was Davia that referred to the disclosure documents
that energy companies put out. Now, I think everybody outside
of these cases recognizes that these cases dovetail intentionally or
accidentally with the broader political and legal and shareholder pressures
that are brought on energy companies to change the way
the companies do business, to regulate themselves, to regulate these

(51:06):
companies outside of the explicit federal regulatory framework. And I'm
curious what the court will make of that. And finally,
I'm curious what the Court will make of the multiplicity
of cases. We keep talking about the sun Core case,
the City of Boulder case, We've been alluding to some
other cases Hawaii and the Second Circuit litigation. But as

(51:26):
Professor Gerard pointed out, at the very outset, there are
what thirty three cases like this right now. The Court,
even when adheres one case, has to decide these issues
with a view to all of these cases and the
more that you pan back and you see the broad
galaxy of cases bringing these kinds of claims, it's harder
to think of them as sort of one by one

(51:48):
cases about legal impacts. It's inevitable that we'll start to
think of them as a sum total. And I'm curious
to the extent to which the court takes that reality
seriously too. I wish I had taken the reality of
my clock more seriously. I'm sorry for going on so long.
Michael and my co panelists saw a littleit of that.

Speaker 3 (52:06):
Well, thank you to all of you.

Speaker 4 (52:09):
Very briefly, since we are running tight on time. If
there are any responses that anyone is dying to get
out before I go to.

Speaker 6 (52:16):
Q and A, can I just say one thing about
the role of Congress here. I mean, I think most
people would agree that ideally Congress would fix the problem,
but Congress has stuck. Congress has not passed a major
environmental law since nineteen ninety. We've had thirty five years
of congressional paralysis. I mean, the Inflation Reduction Act was

(52:36):
not a regulatory law, was a lot of subsidies, many
of which have been taken back, but Congress has not
acted in no small part because a lot of the
defendants in these cases have been very effective in their
lobbying and their campaign contributions. So in the absence of
congressional action, lawyers look for whatever tools there are, and

(52:56):
that's one reason why we have so many of these
cases and many other kinds of cases, and why they
will continue. You know, the IPCC has said, growing out
of the Paris Climate Agreement, that one point five degrees
is sort of the maximum tolerable. Any scientist who says
that we might not get to one point five degrees

(53:17):
until twenty one hundred is an outlier. We are right
now hovering at about one point five degrees, and the
latest estimates from the ipc C and others are that
by the end of the century were likely to be
about two point seven degrees, which by any calculus is catastrophic.
So given the seriousness of what's already happening, it's not

(53:38):
in the distant future. We're already having unprecedented heat waves
and wildfires and extreme precipitation and other impacts that are
clearly worsened by climate change. I think the legal pressure
will continue and will intensify in every form that lawyers
can think of I.

Speaker 5 (53:57):
Would say really greatly on that going on long but
I agree that Congress needs to get into the game.
But I can think of no better way over the
last thirty years to drain all the hydraulic pressure out
of Congress than to seed this entirely to the EPA,
to state regulators, or to lawsuits, as we've done for
thirty years. I remember when President Obama came to office

(54:17):
in two thousand and nine and challenged Congress to legislate
on this.

Speaker 3 (54:21):
He said, if you don't, I will.

Speaker 5 (54:23):
And the moment he said that was the moment there
was no reason for Congress to legislate.

Speaker 3 (54:26):
We all knew where this was headed in some ways.

Speaker 5 (54:29):
The only way to bring this back to Congress, and
this is a recurring theme of the Roberts Court, is
to make it is to recognize and reiterate the limits
on these alternative forms of regulation, both in agencies and
outside of them, to channel the hydraulic forces back into Congress,
to really force them to grapple with this generational issue

(54:50):
that needs Congress's intervention.

Speaker 3 (54:53):
I add one other thing on that, and that is the.

Speaker 7 (54:58):
Courts are not meant to be a backstone for gridlock
or for a dysfunctional Congress. So I have no doubt
that the litigators would like to use the courts because
they are frustrated with the existence of the political process
or what kind of gains that can be had there.
But the constitutional design is actually one designed to create gridlock.
It's one to make legislation difficult. It's one to make
regulation difficult by placing high costs on achieving that ends

(55:23):
through the political processes. And you are actually subverting the
intentionally high cost barriers to producing legislation if you are
asking the courts to produce it when you can't get
it through the normal processes through a cheaper mechanism. And
so there is a you know, our separation of powers
is designed not only to ensure that the right the

(55:43):
pressure is on the right branches to do the right things,
but it's also to ensure that the that the that
if it's not being done there, we have to sort
of accept it and or put that pressure on because
there's not an alternative way to say, when Congress isn't
doing so well, the courts will pick up the slack
in order to achieve some kind of policy ends that
we believe people actually want. It's a poor testing ground

(56:06):
for that as well, because there's very little opportunity to
figure out what what what what outcome is is best achieved.
Comparative institutional competency is it just rests with the regulators
and the legislatures in this space, not with courts.

Speaker 4 (56:22):
So those all touch on a theme that I want
to ask about in particular, David, I thought you were
comment about the de facto carbon tax is right, but
it strikes me as concerning in some respects that you
would then allocate that tax not across industry or people generally,

(56:47):
but against a specific set of private entities like I
mentioned in my opening remarks or my intro with the
you know, state owned companies. You know, we could put
tariffs on them, we can tax them if they're operating here.
That doesn't hold when you're talking about tort liability, it
also doesn't There are there are some It's hard for

(57:14):
me also to see how you're right that the that
things would just go on with passed through costs when
part of public nuisance is abatement. It seems to me
that if you're going to abate something caused by the
production and sale of fossil fuels, that that would just
mean doing less of it or none of it. So

(57:35):
I guess the two points that I would be curious
for your thoughts on are what are the the distributive
effects here, given that you're trying to use litigation to
accomplish or carbon tax, but you can't allocate that across
the entire industry, or even across the entire subset of
industry that is the fossil fuel producers and retailers and sellers.

Speaker 3 (57:57):
And then two, what is the what is the solution if.

Speaker 4 (58:01):
You're asking, if you're not saying that something is going
to be abated, how then is this a public nuisance?

Speaker 3 (58:08):
It seems to me almost a contradiction in terms if
it's not going to be abated.

Speaker 8 (58:13):
Let me start with a carbon tax into that, it's
the defendants might be relatively small in number, but in
some cases it's every company that is produced to fossil
you know, fossil produced or marketed fossil fuels in the
United States, So it's huge numbers of defendants. The Boulder
case has two. But the point is they would then

(58:35):
pass these costs on. That's what that's what corporations do.
And the idea would then be the people purchasing the
products would actually be paying for the harm that those
products cause. That is, you know, if we got that
through a carbon tax. If a carbon tax raised the
price of gas at the pump by fifty cents or

(58:58):
liability of the corporation, or raises the price of the
pump by fifty cents, either way, the person purchasing it
is paying for the damage that that product causes.

Speaker 9 (59:07):
So we think that's an effective way of doing that.

Speaker 8 (59:11):
But when you talked about when Adam talked about my client,
keeping focused on the fact that they're dealing with, you know, how.

Speaker 9 (59:21):
Do we make up these budget numbers? That's real.

Speaker 8 (59:26):
There is nothing realer than a local government trying to
deal with road costs.

Speaker 9 (59:32):
It doesn't get.

Speaker 8 (59:34):
Any more basic. Where are we going to get the
money to keep our roads in shape. Where are we
going to get the money to make sure we have
water supplies, Where are we going to get money to
fight fires? These are basic government services and they are
looking desperately for a means of paying for those things.

Speaker 3 (59:53):
So it's.

Speaker 8 (59:55):
You know, this is it'd be great if Congress had
acted or to act. But I agree with Michael, I
don't think that's going to happen anytime, you know, anytime
in the near future or anytime in the future at all.
So I would go and say, there are times when
courts are required or called upon. I would I would
look back to Brown versus Board of Education. People have

(01:00:18):
been screaming about racial discrimination in the United States to
state legislatures and to Congress for decades, and so I
guess are you're trying to say that those plaintiffs should
have just been you know, sat back and waited more
decades till Congress or states took action, or were they

(01:00:39):
and they were wrong to appeal to courts.

Speaker 4 (01:00:42):
I mean, I think the rejoinder to that would be
something like there was a constitutional amendment that guaranteed no
race discrimination and then that was just ignored, which is
rather different, I think from saying that a particular set
of companies need to be uh de facto tax for

(01:01:02):
something that has upsides and downsides. And I don't know,
I think that's what you probably hear if you asked
that question.

Speaker 3 (01:01:09):
To uh, you know, to the the folks at that time.

Speaker 7 (01:01:13):
I asked David one quick question, and uh, so I
know we're not. We have to have a totally separate
webinar to talk about the Climate Superfund laws at some point.
But the main, one of the main arguments coming out
of those legislators is that these kinds of liability costs
associated with either the Climate superfunds or uh these tortsuits
would not be passed on.

Speaker 3 (01:01:34):
So do you do you do you find that not persuasive?
Then I have not.

Speaker 8 (01:01:38):
Heard anyone say that if Exxon is found liable, it
would not pass those costs on.

Speaker 9 (01:01:47):
To its customers.

Speaker 8 (01:01:49):
I can't imagine that a rational business wouldn't pass on
those costs.

Speaker 9 (01:01:53):
That's what rational businesses do.

Speaker 4 (01:01:57):
One of the issues there is the depth or the
length of the retroactivity. It's very hard to pass on
costs that were sensibly encouraged thirty years ago.

Speaker 3 (01:02:05):
I think would be one of one of the rejoinders.
But press a Coaching, you're the expert on that.

Speaker 4 (01:02:11):
I think we have already blown pat not blown past,
but edge passed our time limit here. I have so
many more questions, and we didn't even get to get
to the audience questions, which someone which will quite a
bit of fun. So I think we'll just have to
get the band back together again sometime soon and.

Speaker 3 (01:02:28):
Do this again certainly. Thank you sounds great.

Speaker 2 (01:02:32):
Thanks everybody here, everyone, Thank you behalf of the Federalist Society.
I want to thank our experts for your valuable time
and expertise. Today I want to thank our audience for
joining and participating. We also welcome listener feedback by email
at fedsock forms at fedsock dot org. Keep your eye
on your emails and our website announcements about more upcoming

(01:02:56):
virtual events.

Speaker 3 (01:02:57):
Thank you all for joining us today. We are adjourned.

Speaker 1 (01:03:00):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Society's practice groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.