The biggest challenge to climate litigation against energy producers to date is now fully briefed and awaiting a decision from the U.S. Supreme Court on whether the lawsuit can move forward.
Reminder: in May, nineteen Republican state attorneys general asked the high court to block climate lawsuits brought by California, Connecticut, Minnesota, New Jersey and Rhode Island, arguing that the cases raise “grave constitutional problems” as they would “affect energy and fuel consumption and production across the country.”
As E&E News reports, the high court’s review is not a guarantee:
“While only the Supreme Court can handle legal battles between states, the justices do not have to take up the case. The justices must first grant the states’ motion for leave to file a bill of complaint.”
The attorneys general’s reply brief, filed last Wednesday, reinforced why SCOTUS should grant the motion:
“The Court should hear the claims of 19 States that allege imminent threats to their sovereignty and to their basic way of life. States should not be left to wait and see what a judicially imposed ‘transition to alternative energy sources’ might entail. … The longer Defendants exercise such power, the greater the risks of severe harm to the energy industry, higher prices across the country, and lasting damage to every major sector of the economy for which energy is a crucial input.
“… 19 States do not lightly invoke this Court’s original jurisdiction; they do so because the threats are real, the constitutional violations are serious, and, having surrendered to this Court the power to settle their controversies, they have no other option.” (Emphasis added)
The Stakes: Sovereignty and Economic Burden
In July, several experts within the legal, academic and energy industry filed friend of the court briefs, urging the Court to take up the case for a variety of reasons, including concerns about energy security and infringements on state sovereignty.
The core argument presented by the amicus filers is that the Democratic-led states’ lawsuits represent an unconstitutional attempt to impose national energy policies through state law.
The American Free Enterprise Chamber Of Commerce (AmFree), represented by former U.S. Attorney General William Barr, warned that allowing these lawsuits to proceed would create an “unwieldy patchwork of regulations” that could severely burden domestic energy companies while leaving foreign state-owned enterprises largely unaffected due to sovereign immunity:
“The grave energy security implications of these suits alone warrant this Court’s immediate intervention. When combined with the need for resolution of the Plaintiff States’ concerns about the Defendant States’ interference with their sovereignty, the need for this Court’s attention is undeniable.” (emphasis added)
The Buckeye Institute’s brief went further, describing the litigation as a “transparent attempt at national regulation through litigation” – a similar point as one made by a Maryland state judge in dismissing Baltimore’s lawsuit last month. David C. Tryon, the director of litigation at The Buckeye Institute, articulated the broader implications of this legal battle:
“The idea that California and other states can know what’s best for energy policies for other states is a false notion. Each state should be free to choose what energy source is best for their state and region.”
Conflicting Rulings Necessitate SCOTUS Oversight
Other amicus briefs pointed to lower court rulings on these lawsuits, which have varied among states and judges. In addition to the recent dismissal of Baltimore’s lawsuit, a court earlier this year significantly limited the scope of Delaware’s case, finding the state only had authority over emissions that originated in the state.
An amicus brief filed by the National Association of Manufacturers underscored the necessity for the Supreme Court to intervene and resolve this constitutional conflict:
“This litigation has become highly contentious, both within and among the states, with courts reaching different conclusions as to the viability and reach of these state law claims. This court’s intervention is needed to resolve this constitutional dispute.” (emphasis added)
Even setting aside conflicting lower court rulings on climate cases, Alabama v. California presents a state-against-state dispute requiring resolution from SCOTUS, as the Federal Courts Scholars pointed out in its friend-of-the-court brief:
“The resolution of state-against-state actions is a core function of this Court under our constitutional structure’s original design, which depends upon the peaceful resolution of interstate conflicts.”
Bottom Line: The volume of legal experts and elected officials calling on the Supreme Court to weigh in on the validity of climate lawsuits showcases the importance of the issue. The Court’s decision to intervene could set a precedent that either curtails or empowers states to influence national energy policies through litigation. The outcome will not only impact the oil and natural gas industry, but also shape the future of interstate regulatory dynamics.
