In a trenchant Los Angeles Times opinion piece, Chapman University law professor and constitutional law expert Donald Kochan assesses an important recent decision rendered by Judge William Alsup of the U.S. District Court for the Northern District of California in two controversial climate-change lawsuits brought by Oakland and San Francisco against a small subset of the world’s energy companies. 

The plaintiff municipalities in these cases, and other similar cases, have sought to compel the energy-company defendants to pay the municipalities very large sums of money.  The municipalities’ basic theory is that judge-made common law should be interpreted and expanded to require energy companies to pay the municipalities’ costs of mitigating environmental and economic injuries that the municipalities assert were caused by climate change.  Among other things, the municipalities’ lawsuits seem in tension with the municipalities’ own role in contributing to climate change.  After extensive briefing and oral argument, Judge Alsup issued a lengthy opinion concluding that the lawsuits must be dismissed as barred on separation of powers and other legal grounds. 

Professor Kochan’s bottom line is that Judge Alsup got it right:  “The U.S. Constitution creates separate lanes of powers.  Courts must stay in their lane: deciding actual cases dealing only with things that were known as wrongs at the time of their commission.  The rule of law frowns on retroactive liability, and the separation of powers forbids judges from making policy, especially by imposing new regulations on previously lawful activity.  [Judge Alsup’s] order reflects fidelity to these fundamental tenets of our constitutional structure.”

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Andrew R. Varcoe is a Partner with Boyden Gray & Associates, PLLC, in Washington, D.C. One or more of the firm’s clients have interests in one or more of the matters discussed herein.