In recent years, there has been an increase in activist lawsuits, officially brought under Unfair and Deceptive Acts and Practices laws, to push extreme progressive agendas. The latest fad? Trying to hold American energy producers accountable for the effects of climate change.
Dozens of these suits have been tried since 2000, and none of them have stuck. They try to questionably claim that companies “deceived” citizens about the consequences of their products. Given the reliance of our government officials on fossil fuel products, especially in spite of the potential climate risks, this so-called deception claim falls flat.
Beyond being a waste of taxpayer money, it is also counterproductive to sue companies and then expect them to turn around and fix climate change. We need to work through practical, proven policy solutions to help New Jersey adapt to the effects of this global problem.
UDAP lawsuits are not the practical way for state and local government to address a matter of national and global concern. Trying to put a round peg in a square hole will have serious negative political, policy and social consequences. There are four main problems with the use of UDAPs to achieve policy goals.
- First, when UDAPs become viewed as the primary tool for influencing policy, the traditional work of consumer protection ends up losing out on resources and attention. Every dollar spent on misguided and often ineffective UDAP actions is a dollar taken away from efforts to ensure that consumers are actually protected from deceptive, harmful business practices.
- Second, when activist trial attorneys and state attorneys general join forces to try to make policy through litigation — like what we’re seeing now in New Jersey — they wrongly take over the responsibilities and powers of elected representatives, which violates the cherished American principles of separation of powers and federalism.
- Third, UDAP laws are frequently used to address allegedly false and misleading marketing and advertising. These activist lawsuits do not serve that purpose. Carefully crafted laws or amendments to UDAPs, however, that explicitly forbid certain kinds of misleading commercial speech may serve important consumer protection ends. But activist suits are not trying to protect consumers from untruthful advertising — they are only intended to punish companies.
- Fourth, activist lawyers often represent states directly in public enforcement actions, which blurs the lines between state attorney general offices and private law firms. Because many UDAPs allow awarding damages and legal fees to whoever wins the case, the laws encourage activists to “throw everything against the fridge,” trying all kinds of claims without connecting them to actual unfair or deceptive business practices.
Given all these problems, it makes no sense for UDAP cases to go after energy providers for selling products we need to keep our economy moving. For example, there are currently two lawsuits in New Jersey — one filed by the state, another by the city of Hoboken — that are suing for alleged climate change-related damages that they claim result from energy companies’ fossil fuel production and supposed failure to disclose related “harms” to consumers and the environment.
Our public officials need to work with, not against, energy producers. These companies’ response to a copycat in Honolulu of the New Jersey and Hoboken cases pointed out the longstanding understanding of the relationship between their product and greenhouse gas emissions.
Since the 1950s, federal officials have recognized that fossil fuels are both vital to modern life and have therefore weighed that fact against any potential risks to the environment to make practical policy decisions. And, beyond the typical way we think of needing fossil fuels, like heating our homes and filling our cars, we also rely on the daily goods produced by these companies — combs, glasses, laptops, toothbrushes.
Rather than demonizing certain companies, we should work through state and federal policy solutions as a much more effective way of fighting climate-related impacts. There are billions of dollars in unspent federal funds designated for environmental mitigation efforts, and policymakers should take advantage of them to help climate-proof infrastructure in our state.
Along these lines, the National Taxpayers Union Foundation has released a report summarizing the different funds that are still available for spending. As they said: “There are better alternatives to (obtain environmental mitigation efforts) that would not impose severe economic harm. Congress has already provided billions of dollars dedicated for remediation efforts that remain unspent.”
According to the report, as of April 4, only a fraction of this funding has been obligated and spent by federal agencies such as Federal Emergency Management Agency, the Department of Transportation and the Environmental Protection Agency. This is an opportunity for New Jersey to solve environmental issues and help strengthen local infrastructure.
New Jersey leaders like me have an important choice to make about how to adapt to climate change. I firmly believe the best path forward is innovative technology and infrastructure investment — practical solutions that protect residents and help grow our economy. Suing the companies that meet our energy needs is a wrong, wasteful approach. Let’s all take note and move forward accordingly.
State Sen. Anthony M. Bucco is a Republican who represents the 25th Legislative District.
