The Hawaii supreme court held that the city may pursue its tort claims against Sunoco, regardless of where the emissions originated.
H onolulu is joining several other U.S. cities in pursuing an untested legal theory that would hold major oil companies liable for the alleged harm the city has suffered as a result of greenhouse-gas emissions that result from the companies’ activities.
The U.S. Supreme Court could take up the case, Sunoco v. City of Honolulu, after the Hawaii supreme court held that the city may pursue its tort claims under state law, regardless of where the emissions originated.
The oil companies have filed a petition for certiorari. Honolulu now has until May 1 to respond.
Last week, John Yoo, professor of law at the University of California at Berkeley, and Richard Epstein of New York University School of Law filed an amicus brief urging the court to grant Sunoco’s request.
“The petition for a writ of certiorari is particularly worthy not only because of the importance of the underlying constitutional questions but also the effect of the Hawaii decision throughout the national energy industry, one of the nation’s largest economic sectors whose rapid decline would spread hardship throughout the nation,” the pair write in the new brief.
The Hawaii supreme court “adopts an unprecedented theory of misrepresentation, concealment, and nondisclosure that alleges that Petitioners have misled the public on matters on which the public is already fully informed,” they add.
If the U.S. Supreme Court does not step in, “other states could concoct similarly unlimited theories of tort liability that will further interfere with the nation’s response to climate change and its ability to pursue a coherent energy policy.”
These cases are sprouting up all over the country. As National Review previously reported, Colorado has been embroiled in a six-year-long effort to strong-arm energy companies to comply with its climate vision through the use of a public-nuisance lawsuit.
The Colorado municipalities are seeking a monetary judgment to finance health-care programs, to generally mitigate the costs of climate change, and to “green-fit” cities, streets, and public transportation.
“It’s sort of a backdoor way, it seems to be me, by states to try to interfere with national policy on climate change and to push a very aggressive and unwarranted theory about . . . tort law, which is a law of accidents and harms,” Yoo told National Review.
Cities and states are now trying to interfere with the way the U.S. should regulate the energy industry and to essentially use the companies as “piggy banks to get them out of their terrible budget holes that they’ve dug for themselves,” he said.
The Supreme Court dealt a blow to ExxonMobil and Suncor last year when it declined to take up a lawsuit brought against the companies by the city of Boulder. The companies sought to move the case from state to federal court.
O. H. Skinner, a former Arizona solicitor general and the executive director of Alliance for Consumers, previously told NR that several of the climate-related nuisance suits that ended up in federal courts had been lost by activists “in part because federal courts have said, ‘Look, you’re trying to solve a transnational issue that involves treaties between countries and greenhouse gases all over the world.’”
Meanwhile, if Honolulu were ultimately to win its case, Americans could expect “every city and county in the country” to sue to get in on the action.
The climate-related nuisance cases are modeled after similar cases against big tobacco companies in the 1990s resulted in a master settlement of more than $200 billion.
“If all of these [climate] lawsuits come out and the federal government and the courts don’t do anything to stop them, then you’re going to see these states try to extort billions of dollars out of the energy industry,” Yoo said. “So the indirect cost is that energy costs in the United States are going to go way up.”
The pair note that the Court’s 2011 decision in American Electric Power Company v. Connecticut left open the question at the center of the Honolulu case. In that ruling, the Court found that the opinion of the lower court in the AEP case “did not reach the state-law claims because it held that federal common law governed.”
The Court ruled in an 8–0 decision in AEP that corporations cannot be sued for greenhouse-gas emissions under federal common law in part because the Clean Air Act grants the Environmental Protection Agency the authority to manage carbon dioxide and other greenhouse-gas emissions.
Meanwhile, the oil companies argue in their latest filing that the ruling of the Hawaii supreme court “squarely conflicts” with the Second Circuit’s 2021 ruling in City of New York v. Chevron Corp., “which held that federal law precluded materially identical state-law claims.”
In that case, the Second Circuit emphasized that the plaintiff, New York City, “does not seek to hold the Producers liable for the effects of emissions released in New York, or even in New York’s neighboring states,” but instead “intends to hold the Producers liable, under New York law, for the effects of emissions made around the globe over the past several hundred years.”