On Monday, reputable policy and legal experts – including state attorneys general, business groups, former DOJ officials, and distinguished law professors – asked the Supreme Court of the United States (SCOTUS) to put an end to the outlandish legal attacks against America’s energy producers.
The slew of amicus briefs support petitions filed by energy companies in February requesting the Supreme Court’s review of the viability of the City & County of Honolulu’s climate lawsuit. Specifically, the companies are asking SCOTUS to overturn a Hawaii Supreme Court ruling that rejected the companies’ efforts to dismiss the lawsuit.
As the experts pointed out, by weaponizing Hawaii state law to impose climate policies that “raise the price” of energy nationwide – rather than passing federal legislation – Honolulu’s lawsuit is poised to impose massive costs on citizens across the country who would never democratically support such initiatives.
Here are other important points raised in the briefs:
SCOTUS Intervention Is Needed to Protect American Consumers and National Security
An amicus brief led by Alabama Attorney General Steve Marshall and signed by 19 other state attorneys general honed in on why Honolulu’s lawsuit poses an immediate threat to their own states’ economies. The AGs urged SCOTUS to take action as soon as possible; otherwise, Honolulu’s case and the dozens of copy-cat cases like it could deplete the nation’s energy industry of essential resources:
“This case may be a rare opportunity for the Court to intervene before Amici States, their citizens, and our Nation’s energy sector suffer tremendous damage. … Erroneously proceeding beyond the motion-to-dismiss stage would be an ‘enormous waste of money, time, and resources.’” (emphasis added)
The AGs also warned that if Honolulu’s lawsuit is allowed to proceed on the merits, it could pave the way for a variety of new lawsuits targeting “any cross-border activity that purportedly exacerbate[s] the impacts of climate change,” like farming, transportation, and the manufacturing of crucial chemicals and materials.
These risks aren’t limited to state economies. Two national security experts, General Richard Myers (Ret.) and Admiral Michael Mullen (Ret.), pointed out in a separate amicus brief that the federal government has long encouraged American companies to produce a “dependable, abundant supply of oil” to ensure military readiness. In seeking to reduce that supply, climate lawsuits offer a leg up to adversary nations and “necessarily cause national security concerns.”
Coordinated Strategy with National Policy Ambitions
Nearly all of the amicus briefs stated the obvious: climate lawsuits and their supporters are trying to use state courts to indirectly regulate – and ultimately shut down – the oil and gas industry. Not only was the climate litigation campaign cooked up by a handful of activist academics back in 2012 at a conference in La Jolla, CA and subsequently bankrolled by the Rockefellers, but its true aim has been the same from the start: to “raise the price” of energy and “bankrupt” the companies that provide essential fuel and heating to consumers.
The American Tort Reform Association’s (ATRA) brief gets right to the core of this issue:
“After this Court’s decision in American Electric Power Co. v. Connecticut, lawyers, activists, and funders joined in La Jolla, California in 2012 to brainstorm new litigation strategies… The “ultimate goal” of at least some participants was to “shut down” the coal, gas, and oil industries.” (emphasis added)
ATRA also asserts that the plaintiffs’ law firms and wealthy foundations backing Honolulu’s lawsuit indicate the case is by no means a local, grassroots effort:
“The coordinated, national nature of these lawsuits continues as most are litigated by the same private law firm – the firm representing the City and County of Honolulu and Honolulu Board of Water Supply in this case – rather than through the government’s publicly-funded attorneys.
“… While private law firms await a contingency fee, outside advocacy groups have subsidized state and local climate change litigation. For example, the New Venture Fund’s Collective Action Fund for Accountability, Resilience and Adaptation (CAF), has long funded climate litigation.” (emphasis added)
An End-Run Around the Democratic Process
Climate litigation has even captured the attention of former U.S. Attorney General William Barr. In an article in The Wall Street Journal in November, Barr observed that “states and activists are now attempting to make national policy through state litigation.”
Now, in an amicus brief on behalf of the American Free Enterprise Chamber of Commerce, Barr argued that if allowed to proceed, climate lawsuits will render national, legislative climate policy debates entirely meaningless:
“It doesn’t take an expert in game theory to grasp how this threatens a ‘race to the courthouse’—and to the bottom. […] Why would a state negotiate in Congress when its courts can simply impose liability on out-of-state defendants or order them to cease doing business?”
Former AG Barr’s claim isn’t speculative – speaking at an event in support of climate lawsuits in 2019, Hawaii’s own Senator Brian Schatz said that litigation could “terrify” American energy companies into supporting national climate policies like a tax on carbon.
Bottom line: Presented with an opportunity to ensure that needed American energy isn’t stifled by billionaire-funded-activists, the Supreme Court could decide as soon as June whether it takes up the energy companies’ petition to review the merits of Honolulu’s case.
