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Monday, August 19, 2019

Former Florida AG: State likely to delay climate change action while appeals courts decide

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By John Breslin | Jul 17, 2019

Former Attorney General Bill McCollum | Dentons

Florida cities and counties are likely to wait on the sidelines to see how litigation against fossil fuel companies over climate change is decided in courts across the country, according to former Florida Attorney General Bill McCollum.

Several governmental entities in Florida were reported to be considering taking action against Big Oil, which environmental activists and trial lawyers argue should be liable for future costs associated with managing fallout from climate change, including expected sea level rise.

But Fort Lauderdale, which played host to a presentation from one activist organization, previously told the Florida Record that it has no plans to take legal action.

Miami Beach, through its spokesperson, Melissa Berthier, told the Florida Record: "Our response has not changed; the city of Miami Beach is disinclined to discuss this subject matter."

McCollum, now a lawyer with the Washington law firm Dentons, said he has no special insight as to how Florida municipalities or counties are deliberating potential litigation, but predicts, "I think they are choosing to sit it out and see what is happening with appeals."

Various lawsuits, including those by New York and San Francisco with Oakland have appealed the dismissals of their cases that had been rejected by federal courts. Others await rulings as to whether they can be remanded to state court, where the governmental entity plaintiffs would prefer to litigate.  

McCollum noted that Florida is taking seriously the potential for damage caused by climate change, but believes the issue is one for state agencies and the legislature to resolve, rather than the courts. 

"Gov. Ron DeSantis has stated his office is committed to dealing with the impact of rising sea levels," McCollum said. "[There is] is already in existence at least two regional task forces, in southeast Florida and the west coast.

"That is a good plan because cities and counties cannot do this on their own [and] need support from state and federal government."

Regarding ongoing litigation, McCollum said there are different issues at the core of the different actions, but at the federal level a fundamental question centers on whether the plaintiffs have any cause of action.

He cited the high hurdles of the Clean Power Act and American Electric Power Co. v. Connecticut, both of which essentially bar legal actions against energy companies over emissions. This includes suing under federal nuisance law, which legislates against "unreasonable interference with the public's right to property," including its health, safety, peace, or convenience.

Overall, McCollum's believes there is a danger inherent in so many cities and counties filing suit, comparing that to actions against drug manufacturers, distributors and others over opioids.

Although state attorneys general are leading many of the opioid actions, hundreds of local authorities have attached themselves to the litigation. This is, in part, is driven by offer from trial lawyers to work on a contingency fee basis.

"It creates enormous problems for the legal system," McCollum said.

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