In two related amicus briefs filed Tuesday, the Biden-Harris Department of Justice encouraged the U.S. Supreme Court to allow climate lawsuits against American energy companies move forward – but hinted that the legal approach may run into serious obstacles.
While arguing that climate suits are not yet ripe for Supreme Court review, both of US Solicitor General Elizabeth Prelogar’s briefs acknowledge an underlying constitutional problem in the case that may lead to its demise:
“To be sure, petitioners may ultimately prevail on their contention that respondents’ claims are barred by the Constitution … to the extent the claims rely on conduct occurring outside Hawaii.” (emphasis added)
The briefs came after SCOTUS directed the SG weigh in on two pending challenges to climate litigation. In one, the energy company defendants are appealing a Hawaii Supreme Court decision that rejected the companies’ efforts to dismiss the City and County of Honolulu’s lawsuit. The other is an interstate dispute in which a coalition of Republican state attorneys general argue that blue-state climate suits infringe on state sovereignty.
Allowing the thirty-odd cases to move forward in state courts across the country – and implicitly greenlighting the proliferation of similar lawsuits nationwide – would 1) suck up taxpayer dollars and courtroom resources, and 2) surely result in the same opportunity SCOTUS has today – just years later – regarding the constitutional issues inherent in using state courtrooms to address interstate and global emissions.
Biden-Harris SG briefs hint at future roadblocks for climate plaintiffs
The solicitor general’s admittance that climate lawsuits may run up against constitutional challenges in the future over their attempts to penalize companies for lawful out-of-state and international conduct has already played out – to the plaintiffs’ detriment.
That same argument prompted a Delaware Superior Court Judge to massively narrow Delaware’s climate lawsuit to only encompass in-state action undertaken by the energy companies. Given that most climate lawsuits have been filed in jurisdictions where, ionically, little to no oil and gas production takes place, rulings like Delaware’s deal an enormous blow to the plaintiffs’ ambitions.
Similar legal reasoning was cited by a Baltimore Circuit Court judge in her ruling that dismissed Baltimore’s climate lawsuit in full, sending shockwaves through the network of climate activists, funders, and plaintiffs’ attorneys who support the national lawsuit campaign.
These recent losses have forced the climate litigation campaign to look elsewhere in a “throw spaghetti against the wall to see what sticks” strategy, endorsing climate superfund bills that are riddled with legal problems or even the fringe climate homicide theory.
Biden’s “strategic support” of climate lawsuits ends not with a bang, but a whimper
The Department of Justice’s implicit endorsement of climate litigation was not accompanied by a press release or fanfare of any kind. Support for the dark-money funded climate litigation campaign has been a tricky subject for the Biden-Harris administration, as the outgoing administration has avoided taking the hardline stance against the industry preferred by climate activists.
This was evident in Vice President Harris’s presidential campaign as she flip-flopped on major energy issues like fracking and avoided discussing climate suits altogether, despite her previous full-throated support for suing the energy industry.
At the time, Steven Winberg, the former acting U.S. Department of Energy Under Secretary for Energy, wrote in the Washington Times that the SG brief could shed true light on where Harris really stood on energy issues – perhaps providing a reason to the delayed release after the election:
“Unlike campaign promises and omissions, legal filings are binding. Overtures to swing voters who support fracking mean nothing if climate lawsuits are allowed to prevail…
“If the Biden-Harris administration endorses climate change lawsuits with the full weight of the Department of Justice, voters will have a clear picture of where Ms. Harris truly stands on oil and natural gas. It won’t be on the side of everyday Americans.”
What comes next?
Next steps remain up in the air as the Supreme Court considers whether constitutional issues apparent in climate lawsuits merit the High Court’s review at this time. It’s yet to be seen how much weight the Court will give the lame-duck opinions presented by the Biden-Harris Department of Justice, especially given the turbulent state for the climate litigation campaign.
Depending on when the Supreme Court chooses to rule on either or both petitions, the Trump Administration could have a chance to present its view when former President Trump takes office in January.
President Trump has already outwardly rejected climate lawsuits, stating he intends to stop the “wave of frivolous litigation from environmental extremists” that restricts energy development and raises costs for consumers – clearly putting him at odds with the Biden-Harris DOJ’s position.
Bottom Line: A lame duck opinion endorsing climate litigation in the dwindling days of the Biden-Harris administration unsurprisingly endorses climate lawsuits, but suggests that the suits could have fundamental constitutional flaws. All eyes are on SCOTUS to see whether the High Court will choose to intervene this term to put a stop anti-energy lawfare.
