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Humanize From Discovery Institute's Center on Human Exceptionalism
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Medical Journal Editorial Urges Lawfare Against Oil Companies

Originally published at National Review

Our most venerable medical journals have gone political, continually espousing the redefinition of our most contentious political controversies — race, climate change, guns, etc. — into public-health emergencies to permit the authority of medicine and people’s trust in doctors to sway outcomes.

A Perspectives editorial penned by law professors in the New England Journal of Medicine enters the fray again, this time, advocating lawfare by governments against fossil fuel industries. The authors take heart from a legal settlement between a Louisiana parish and oil companies. From, “State and Local Climate Litigation for Protecting Public Health“:

The case filed by Cameron Parish, which was settled in December 2023 for an undisclosed amount of money, was one of many that have targeted the oil industry. Louisiana communities have filed more than 40 lawsuits against oil companies over their dredging activities, alleging that the companies’ actions polluted local bodies of water and made the communities more susceptible to flooding.

But this case is not the same thing at all as paying damages for climate change. The Louisiana case concerned actual pollution befouling a specific place, meaning that its causes and public consequences were discernible and measurable, harms caused by identifiable misfeasance or malfeasance. From a NOLA.com story about the settlement:

The largest group of those suits was filed in Plaquemines Parish, which in 2013 filed 21 similar lawsuits charging that oil and gas companies failed to follow state law in drilling wells, disposing of wastes, building pipeline canals, and in restoring the land to the same condition it was in before their operations began.

In contrast the causes and impact of climate change are debatable and nebulous — often depending on “models” to predict future events that may never come to pass. Nor can current damages caused by a severe weather event — such as flood or tornado — be pinned on a specific wrongful act or identifiable tortfeasor.

But government officials, environmentalists, and trial lawyers see lawfare as a potential money gusher to pay for their favored projects, and as these things tend to go, to fund the advocacy and activities of politically favored NGOs:

Although the settlement amount in the Cameron case is unknown, the companies’ willingness to settle, despite dozens of cases pending, suggests that litigation could be a promising way for states and local governments to adapt to a changing climate. Settlements or awards could be used by governments and public health officials to design and implement adaptations that could help reduce the public health harm caused by climate change and address the disproportionate effects on marginalized communities. One change could involve transitioning away from the use of fossil fuels in the medical field, since the health care sector is responsible for roughly 8.5% of U.S. greenhouse-gas emissions.

Boiled down to its essence, this is just wildcat digging for deep financial pockets:

Lawsuits brought by states and local governments, if broadly successful, could mark a turning point in efforts to protect public health from threats associated with climate change. Major adaptations are necessary, but the combined costs of such changes could overwhelm local governments. In the absence of federal legislation, the pending lawsuits offer an opportunity for the public to pass part of the financial burden associated with protecting public health on to companies that, according to the suits, profited from the use of fossil fuels and hid the dangers associated with emissions from the public for decades.

If this tactic succeeds, it will be disastrous. Imagine the state of the world’s economies and the reduced quality of all our lives being forced by the naked power of litigation to suffer in a world with scarce or far more expensive fossil fuels.

But forget practicality. Back in the NEJM, the authors want to enlist doctors as shock troops in the great lawfare campaign!

Physicians and public health practitioners can support these lawsuits by joining amicus briefs in pending cases, helping to develop evidence-based plans for the use of litigation proceeds, amplifying conversations about climate change and health, and encouraging their cities, counties, and states to join the wave of litigation. Until there is a national approach to addressing the climate crisis, we believe lawsuits brought by governments can play an important role in holding companies accountable and rectifying problems that threaten individual and planetary health.

Bah. Declaring lawfare against fossil fuel industries will not reduce climate change but will harm human thriving and diminish the public’s trust in the medical establishment and public health sector.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.