All eyes are on the Supreme Court.
All eyes are on the Supreme Court.
O pponents of fossil fuels claim to oppose pollution, but they are all too happy to pollute our legal and constitutional institutions in pursuit of their climate-policy agenda. The latest manifestation of this trend is a litigation campaign against fossil-energy producers in state courts under state laws, alleging that the energy producers “knew” decades ago that greenhouse-gas emissions from the consumption of fossil fuels would create dangerous changes in climate phenomena, and that they failed to warn consumers about those risks.
Put aside the reality that most such emissions take place outside a given state’s (or locality’s) borders, which is a huge problem for such litigation as City & County of Honolulu v. Sunoco LP. Having lost repeatedly in federal court because climate/energy policies are the purview of Congress — see, e.g., here, here, and here — the opponents of fossil fuels are pursuing legal victories where they can find them. Honolulu in 2023 won a ruling from the Hawaii supreme court, which ruled that federal law does not preempt state/local actions, and that the case should proceed in state court under Hawaii state laws. Amusingly, one justice argued that “the Aloha Spirit inspires constitutional interpretation.”
Unsurprisingly, the oil companies have appealed to the U.S. Supreme Court, asking it to resolve the conflict between a 2021 ruling by the U.S. Court of Appeals for the Second Circuit — “whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no.” — and the ruling by the Hawaii supreme court.
The U.S. Supreme Court has signaled that it is interested in the case: It has asked the Justice Department to offer its views on the underlying legal issues. Because those legal issues are crucially important, the Supreme Court should review the case. Should it decide to do so, the outcome will provide clarity at a minimum, but could offer a much brighter outlook for the rule of law and proper constraints on the ability of states and localities to dictate energy/climate policies to the rest of the country.
Why? Because other than in the decision by the Hawaii supreme court, the arguments from the supporters of local/state legal actions have not fared well. A Baltimore judge this past summer dismissed the city’s climate-damages claims under state law. As already noted, the U.S. Court of Appeals for the Second Circuit has come to a similar conclusion. In 2018, the U.S. District Court for the Northern District of California dismissed similar lawsuits by the cities of Oakland and San Francisco.
In AEP vs. Connecticut (2011), the late justice Ruth Bader Ginsburg, delivering the opinion of the Supreme Court, commented that the EPA “is surely better equipped to do the job [of regulating greenhouse-gas emissions] than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.” Even prior to the Supreme Court’s AEP decision, the Obama Justice Department’s acting solicitor general, Neal Katyal, urged dismissal of this case and perceptively noted, “essentially any potential plaintiff could claim to have been injured by any (or all) of the potential defendants. The medium that transmits injury to potential plaintiffs is literally the Earth’s entire atmosphere — making it impossible to consider the sort of focused and more geographically proximate effects that were characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.”
More recently, a Delaware Superior Court judge in January narrowed sharply the focus of a similar case to in-state emissions only, ruling that “claims in this case seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution, are pre-empted by the CAA [Clean Air Act]. Thus, these claims are beyond the limits of Delaware common law.”
The point is that almost all of the courts addressing climate-damage claims under state law have come to the correct decision: Climate policy by its very nature is federal.
Note that U.S. output levels of crude oil, natural gas, and coal are, respectively, 21.5 percent, 21.2 percent, and 6.5 percent of the global totals. U.S. greenhouse-gas emissions from all combustion of fossil fuels are less than 9 percent of global greenhouse-gas emissions. Accordingly, the argument that U.S. fossil-energy producers are “responsible” for the effects of anthropogenic climate change is preposterous: Elimination of all U.S. fossil-fuel-combustion emissions would reduce global temperatures in 2100 by 0.077°C, applying the Environmental Protection Agency climate model under realistic assumptions. That temperature effect would not be detectable.
And with respect to the claim that the fossil-energy producers “knew” decades ago about the effects of greenhouse-gas emissions: The Intergovernmental Panel on Climate Change in its 1990 First Assessment Report (page 202) made it clear that it could not explain why temperatures were higher 5,000-6,000 years ago despite no evidence of an increase in greenhouse-gas concentrations. In the IPCC’s Sixth Assessment Report, from 2021-2022, the panel concluded that it still could not narrow down the “likely” range (p. 46) of climate effects of increased greenhouse-gas concentrations. Did the fossil-energy industry “know” things decades ago that are not known today? Obviously not.
Can any neutral observer doubt that the climate-litigation game is centrally a money grab? The opponents of fossil fuels and the plaintiff attorneys and local officials for whom no amount of tax revenue is ever enough may rejoice at the prospect of hundreds of billions of dollars of loot taken from the energy producers. But any such outcome would entail massive costs for the economy in the aggregate, which is to say, for large numbers of ordinary people. Energy would become much more expensive. Capital investments would be distorted and the capital stock would become less productive. We would see lower labor productivity and a real decline in wages. The Supreme Court should grant review of the Honolulu case, and issue a ruling making it clear that climate policy is the proper purview of federal law and Congress.