Pub­lic pol­icy doesn’t be­long in the courts

Boston Herald - - NEWS - Evan SLAVITT Evan Slavitt is a Mas­sachusetts lawyer who writes on le­gal is­sues for the Her­ald.

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.


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