Biden’s solicitor general briefs in climate change cases ignore contrary analysis from both the Obama and Trump administrations.
On Tuesday, December 10, 2024, the solicitor general of the United States submitted two amicus briefs endorsing state court public nuisance and related climate lawsuits, encouraging the U.S. Supreme Court to allow these cases to proceed by declining to hear the cases recently submitted to it.
If the Court agrees, an increasingly expanding patchwork of state court public nuisance and consumer fraud claims related to climate change could be filed in any and every local courthouse in the country. The Biden SG’s conclusions are both dangerous and inconsistent with past Democrat and Republican SG assessments of the same issues.
As background, in June and October 2024 respectively, the Court requested the views of the SG in two dockets pending before it. In Alabama et al. v. California et al., 19 republican state attorneys general filed an bill of complaint directly in the U.S. Supreme Court arguing that the democratic states should be enjoined from suing oil companies over emissions and promotion of fossil fuels. In two other cases — Sunoco LP v. City and County of Honolulu and Shell PLC v. City and County of Honolulu — the Court is considering whether to grant petitions for certiorari to review a decision from the Hawaii Supreme Court that recognized broad and novel theories of liability to hold energy companies liable for the effects of climate change.
At heart, both the Alabama complaint and the energy company petitions in the Honolulu cases are based in the argument that state court climate-change cases should not be permitted to proceed because, among other things, federal interests dominate, and federal law displaces or preempts the state law claims. Transboundary pollution effects should only be handled within the accountable branches of the federal government rather than the unaccountable and non-expert state courts.
From Obama through Trump, past administrations agreed with these conclusions. For example, President Obama’s solicitor general, Neal Katyal, wrote in the brief for the United States in the 2010 U.S. Supreme Court case AEP v. Connecticut, stating the official position of the federal government, that, “In the context of climate change, a regulatory solution will be far better suited to addressing the scope of the problem and to fashioning an appropriately tailored set of remedies than a potentially open-ended series of common-law suits in far-flung district courts.”
In that same brief, the position of the United States was that courts are not an appropriate place to resolve disputes of this kind: “Plaintiffs’ common-law nuisance claims are quintessentially fit for political or regulatory — not judicial — resolution, because they simultaneously implicate many competing interests of almost unimaginably broad categories of both potential plaintiffs and potential defendants.”
And, the theories in these climate-change cases are ones not fit for judicial resolution through amorphous common law claims because, as Katyal continued for the United States: “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.”
The disapproval of the United States for these public nuisance claims remained consistent between the Obama administration and the first Trump administration. For example, President Trump’s solicitor general, Jeffrey Wall, wrote as the position of the United States in its brief in the U.S. Supreme Court case of BP plc v. Mayor & City of Baltimore, “Under this Court’s precedents, state law can be wholly displaced in ‘matters essentially of federal character,’ even when ‘Congress has not acted affirmatively about the specific question.’” The United States brief concluded that if there are any possible common law claims, they “continue to arise under ‘federal, not state, law’ for jurisdictional purposes, given their inherently federal nature, Ouellette — even if such claims may be displaced by the Clean Air Act.”
Similarly, Brinton Lucas, former assistant to the solicitor general stated the position of the United States in oral arguments for the BP plc case in January 2021 that the plaintiffs’ claims in these state climate-change cases invoking state causes of action should be considered “inherently federal in nature.” And, he exposed that, even if plaintiffs “tried to plead around this Court’s decision in AEP, its case still depends on alleged injuries to the City of Baltimore caused by emissions from all over the world, and those emissions just can’t be subjected to potentially conflicting regulations by every state and city affected by global warming.”
The Biden administration first shifted away from the legal conclusions held by both the Obama and Trump administrations in an amicus brief in 2021 in the petition for review in BP p.l.c.. Prior administrations recognized that, even if stylized as state law claims, public nuisance claims in the climate context necessarily implicate federal law issues. The Biden solicitor general, Elizabeth Prelogar, acknowledged a change in position and grounded it in the political prerogative of a new administration to take a different view. Prelogar wrote for the United States, “The United States has reexamined its position and has concluded that state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law.”
Inexplicably though, the briefs filed this week lacked such transparent disclosure to the Court of the shifting nature of the United States’ legal position. The briefs do not acknowledge the SG’s change in position away from the sound conclusions of the prior Obama and Trump administrations. Since the briefs do not even acknowledge the shift, they necessarily also fail to explain the shift. That alone should cause the Court to question the persuasiveness of the newly conceived legal position.
The Biden SG’s arguments in this week’s briefs are not neutral interpretations of the law. Instead, they’re clearly motivated by the Biden administration’s legacy-seeking, lame duck, progressive political preferences to induce courts to make new law. And, this was not unpredictable. An administration on its way out is more likely to advance long-shot or wish-list interpretations of the law to attempt to leave an outsized mark on the path of the law.
The wise next move for the new Trump administration is to request leave to file an amended brief in these cases immediately upon inaugural. If the Trump SG files a new brief rejecting the positions taken this week by the Biden SG, it will reinstate the positions of its own former administration and the position of the Obama administration, the first to opine on this topic. The Biden briefs filed this week are the outliers and consequently undeserving of significant attention by the Court.