The D.C. Council this month passed legislation to allow the District of Columbia’s attorney general to sue individuals and businesses for political reasons without accountability. It did so under the “emergency” powers of the district, avoiding the checks and balances of the regular legislative process. This misuse of government power is unprecedented, undemocratic, and unnerving.
The legislation in question exempts the district from “anti-SLAPP” laws, which protect people from being sued in an effort to intimidate them from engaging in public policy debates. SLAPP stands for “strategic lawsuits against public participation,” and anti-SLAPP laws are widely supported by the American Civil Liberties Union, media organizations, and others as core safeguards protecting free speech.
So what is this all about? Climate change politics.
In a letter to the council, the attorney general said he wants to be exempt from anti-SLAPP accountability in order to maintain his lawsuit against energy manufacturers over their involvement in the climate change debate. Whatever one’s political persuasion or view on climate and energy, this litigation and the anti-SLAPP exemption are horrible ideas.
This litigation is not about whether climate change is a serious problem. It is. The only path forward is to innovate new ways for the world to source and use energy so it can do so sustainably.
However, developing such climate policies has proven difficult; they often present complex problems rife with regional and political differences. After all, they affect basic aspects of all of our lives: how we heat and cool our homes, fuel our cars, power our workplaces, and so much more. It is frustrating that partisan politics has paralyzed Washington over the past few years on lots of topics, let alone on critical, complicated issues such as climate change.
Scapegoating energy companies for Congress’s dysfunction, though, is no way to make climate policy, even if it makes for good politics in some circles. The Supreme Court already said so in response to a previous attempt at this litigation. In 2011, in a unanimous opinion written by Justice Ruth Bader Ginsburg, the court said balancing the competing interests involved in energy policy, including affordability, energy independence, and climate, is something only Congress can do.
Yet, in 2012, some environmental advocates and lawyers said they still believed the “best current hope” for imposing their national policy agenda was litigation. Even if not successful, they later said, the media they could generate from the lawsuits could help them “delegitimize” the energy companies as political actors. There are now two dozen lawsuits around the country based on this premise, which one court called “lawfare.”
The district’s lawsuit actually goes further than most of the others. It seeks to subject energy manufacturers to liability just for discussing how they are working to create a “sustainable” future, make energy “cleaner,” and be “part of the solution to climate change.” It indicates the companies should be foreclosed from saying any of these things solely because they sell oil and gas.
It is hardly a surprise, then, that the companies are fighting back, saying these lawsuits violate their anti-SLAPP protections to engage with the public on climate policies. Anti-SLAPP laws are critical for every person and company in this country that engages in political discussions. We may not always agree with what others say, but it is undemocratic to silence their ability to say it.
If the district’s attorney general truly believes his climate lawsuit has merit, he should make his argument in court instead of asking the council and the mayor to change the laws so he can avoid accountability — let alone through the council’s “emergency” powers. If the mayor signs the bill, it can be vetoed only by an act of Congress.
If enacted, this legislation could open the door to political lawsuits on many issues, not just climate change. When the government sues, or authorizes a lawsuit, it must be to advance the public good, not partisan politics. The district’s lawsuit here does not pass this test, and our planet is too important to be a pawn in the politics of division.
The good news is that the courts are continuing to see through this litigation. Earlier this year, a federal court threw out a similar climate lawsuit filed by the city of New York, saying it “ignores economic reality.” The district would be wise to abandon this lawsuit, not change its laws to facilitate it.
District leaders can join the important work of combating climate change or get weighed down in a pointless blame game. Passing blame is not how to get things done.
Phil Goldberg is a special counsel to the Manufacturers’ Accountability Project and the office managing partner of Shook Hardy & Bacon, LLP in Washington, D.C.