Whether Americans are the most litigious society in human history is debatable. Shakespeare, after all, was author of the quip, “the first thing we do, is we kill all the lawyers.”

Presumably, funneling our civil disputes into courtrooms offers benefits over trial by combat. Even the Bible is replete with tales of legal struggle. King Solomon’s ruling to slice a child in half is most often cited as an exercise in judicial wisdom. There remains ample reason, however, to question the proposition that lawsuits serve as a civilized route to reaching justice.

I’ve written several screeds about the propensity of our governments to sue each other, burdening taxpayers with the costs of attorneys on both sides. Surely many of these intramural squabbles would better be resolved through mandatory mediation or formal arbitration. The ingenuity of trial attorneys seemingly has few limits. Nowhere is this more evident than in the burgeoning arena of environmental litigation where advocates are proposing legal rights for rivers, ecosystems and wildlife.

While ecological damage is real, even measurable, it’s doubtful jurisprudence can adequately protect against injury, even in instances as extreme as species extinction. The origins of climate change are too numerous, the trail of responsibility too recondite and motives too obscure for a fair assignment of blame. Even as liberal a justice as Ruth Bader Ginsburg noted that Congress rather than the courtroom is the appropriate venue for addressing climate complaints. As mitigation costs imposed by climate change burden governments, they have started to seek financial relief from alleged culprits, relying on a “deep pockets” strategy for cost recovery. What has worked for demonstrable medical injuries may not prove transferable in a petition against the industrial revolution.

This is not to say greenhouse consequences are without significant impact or significant costs. Assigning responsibility for environmental injuries is much murkier. A group of homeowners who lost their residences to the January Marshall fire which swept through Boulder County have filed a suit for damages against Xcel Energy without suggestive, much less conclusive, evidence Xcel bears any complicity. If eventually found culpable, any financial settlement will be levied against Xcel’s customers across the state. A case filed by three Colorado communities, including Boulder, against Suncor Energy and Exxon Mobil in 2018 seeking damages for the costs of responding to climate change lacks solid linkages between accused malefactors and specific damages.

Following more than three years of tossing this legal hot potato among themselves, the U. S. Court of Appeals for the Tenth Circuit in Denver recently remanded the suit back to Colorado state courts. An additional decade of judicial wrangling and wasted tax dollars should be expected. All parties to this dispute readily acknowledge the energy industry does not possess sufficient financial reserves to pay for the costs of coping with global warming. What’s their goal then? As Pat Parenteau, environmental science professor at the University of Vermont law school, observes in a recent Pew Center report, “The fact that this is a global phenomenon is obviously the thing that distinguishes these tort actions from any cases we’ve seen before.”

The plaintiffs in Colorado, as well as other states, hope they can demonstrate in court that energy companies consciously continued to market fossil fuel products long after they were aware of their contribution to climate change. But allocating blame and demonstrating malice are a tricky business. A century ago, when the auto industry opted for internal combustion engines over batteries scientists were more concerned about the imminent threat of another ice age than they were of global warming. The commercial inertia driving fossil fuels remains immense as few drivers are prepared to surrender their cars until reliable, battery-powered vehicles are widely available. Of course, the unanticipated consequences of electrification are yet unknown.

Parenteau also says, “If these cases go to their logical extreme, (the oil companies) all go bankrupt. They should!” This is clearly a value statement and not a legal opinion. The alternative to industry-wide bankruptcy would be the designation of oil and gas companies as de-facto tax collectors driving up the price of fuels. Governments would then skim these new excise “fees” to fund preparations for global warming disasters. This disguised funding scheme is particularly appealing in Colorado where TABOR requires voter approval of new taxes.

It might be a good idea for local governments to take a deep breath and quit searching for villains. Not only is the energy industry a major driver of Colorado’s prosperity, but it may be best positioned to assist in a transition to a more sustainable future. It’s been a decade since BP invested in the state’s first major wind farm. Whenever the energy industry became aware of the costs of global warming, they’re well aware today. We will all have to pay our fair share. Let’s try that.

Miller Hudson is a public affairs consultant and a former Colorado legislator.