Public policy doesn’t belong in the courts
Traditionally, the focus of the courts was the resolution of specific legal disputes between two parties. In the last
20 years or so, public policy disputes have been creeping into the judicial system, and not in a good way.
The most recent example of this is climate change (formerly known as global warming). Now this is an issue that could not be more obviously a question of public policy than if it painted itself blue and danced on the piano.
It affects fundamental questions of the priority of environment versus economics, foreign policy, environmental justice, and more. This is exactly the kind of problem we hope our legislatures and leaders will address using all their tools to build a consensus, make laws and sign treaties.
To me it is an issue uniquely inappropriate for the judicial system. Why should we look to the courts to set priorities for society? Why should such issues be resolved depending on who just happens to be the plaintiff and defendant in any case? It makes no sense.
And yet, there are an increasing number of climate change cases filed. Massachusetts Attorney General Maura Healey has, unsurprisingly, jumped on this bandwagon, as have other attorneys general and various activists. Characterizing their claims variously as fraud, tort (for damages), nuisance or other theories, there is an effort to move this dispute into the courts.
Now I have no particular sympathy for “Big Oil.” I don’t know many who do. But to sue them as if they were the bad guys and to ask the courts to resolve this is just wrong. I drive a car, have used heating oil, and fly places — as do most people. So this is not about “them,” it is about “us.”
So far, there have been mixed results in courts. Some judges have dismissed these actions; others have not. As one judge noted in dismissing a case filed in California: the “problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”
Yay for that judge. Inevitably, however, not all judges will be as realistic or as humble — those are characteristics that often disappear when a person puts on a robe. And then we will start to get decisions that could reshape society issued by people we don’t know, didn’t vote for and don’t represent us.
We need to get these matters out of the courts. It is not what they are for. I know many judges — and even like some of them — but public policy is too big and too complicated for them and the judicial system.
NOT THE POINT: Attorney General Maura Healey, like other attorneys general, has jumped on the bandwagon of bringing public policy disputes to the courts.