Supreme Court must now decide whether to follow the law and protect consumers – or follow politicized opinion handed down by Biden DOJ
On Thursday, the Biden administration’s Department of Justice (DOJ) issued its long-awaited amicus brief on whether the Supreme Court should rule on a core jurisdictional question in the City and County of Boulder and the County of San Miguel’s climate lawsuit, and in dozens of other similar lawsuits across the country. After pressure from activists to fulfill a campaign pledge to “strategically support” climate litigation, the position argued by the Biden DOJ is a predictable nod to activists, but it’s hardly an endorsement of the lawsuits.
At issue is the basic question of whether these cases (which ostensibly seek to tackle an issue with global implications) should be heard in federal or state court. The plaintiffs – states and municipalities across the country – have pushed for their cases to be heard in state court, while the energy companies have rightfully argued that federal courts exclusively should hear claims related to interstate, and international, greenhouse gas emissions.
Last year, the energy companies named in the Colorado municipalities’ lawsuit petitioned the Supreme Court to review the jurisdictional issue in the case. Ironically, the lawsuit lacks support in Colorado even among Democratic officials, including Governor Jared Polis and Attorney General Phil Weiser.
In a plot twist, the Court then asked the asked the Biden Administration to file a brief on the matter “expressing the views of the United States” before weighing in on the issue, putting the Biden administration in a tricky spot given its history of overtures to climate activists.
Biden Promises “Strategic Support”
The newly released Solicitor General brief stops short of a clear endorsement of climate litigation; instead, it simply agrees with, and references the decisions of, the several circuit courts that have ruled in favor of the states and municipalities on this jurisdictional issue.
The Solicitor General’s brief is advisory, and non-binding. According to Politico, the Supreme Court could decide whether to hear the appeal “in the coming weeks or months.”
In 2020, Biden’s campaign pledged to “strategically support” climate lawsuits. But in January 2022, a year into Biden’s term, supporters of climate litigation expressed frustration at the lack of support from the administration. Richard Wiles, president of the notorious plaintiff-recruiting group Center for Climate Integrity, was particularly frustrated, as reported by E&E News:
“The president pledged that they would ‘strategically support’ the cases, and they have failed to do that […] And that’s significant. The Department of Justice is an important voice on the legal landscape, and its absence is conspicuous.”
Senator Whitehouse (D-RI) has also pushed the administration to take a position on climate litigation. Whitehouse joined eight other Senate Democrats in a letter urging the DOJ to intervene on climate litigation, and even asked Attorney General Merrick Garland if the DOJ is exploring such lawsuits during a Senate hearing earlier this month.
Despite this commitment to activists and litigation proponents, the Biden administration had steered clear of commenting on climate litigation, until this week.
More Mixed Messages from the Administration
While the findings of the brief – which clocks in at a brisk 27 pages – are not all that surprising, the timing is curious. In October, Politico speculated that the call for DOJ input would delay the Supreme Court’s decision on the cert petition to early 2023, indicating that the Solicitor General’s brief would be released much earlier.
It is possible that the Biden administration held off on taking a stance on climate litigation until it felt that it needed to appease far-left activists before the start of campaign season. Notably, the release of the Solicitor General’s brief follows the approval of the Willow project in Alaska – a move that angered the same out-of-state activist groups that support this climate litigation, even though the administration effectively banned new Arctic Ocean drilling in the same breath.
Like the bait-and-switch on Willow and ongoing regulatory hurdles preventing domestic production, the Solicitor General’s brief is more of the same mixed messages from the administration.
Adding to the incoherency, the administration argues that climate lawsuits belong in state courts as it believes the cases do not require federal intervention. But on the other hand, the Biden administration makes its preferences for expansive federal environmental regulation known through nominating officials like Joseph Goffman, the “law whisperer” who crafted the unconstitutional Clean Power Plan and now leads a key EPA office tasked with regulating interstate pollution.
State Jurisdiction Would Raise Consumer Costs
As we wait for further action from the Supreme Court, it is important to remember that precedent points to a federal venue and legislative solution to climate change. Administrations from both ends of the political aisle have weighed in on similar lawsuits concerning the appropriate venue for regulating emissions; the DOJ under President Obama argued that global warming is suited to “political or regulatory — not judicial — resolution.”
As bad as it would be to establish national climate policy through dozens of state court rulings, the actual merits of Boulder’s case are far worse. While the plaintiffs have claimed that the goal of their lawsuit is to win funds to pay for climate-related damages, their offhand comments reveal different agenda: to end responsible oil and natural gas development. Key officials and attorneys involved in the case have admitted that the suit is actually about sparking “system-level change” to “raise the price” of energy amidst a global energy and cost-of-living crisis.
These comments should not come as a surprise; the campaign is hardly the grassroots movement it claims to be. At the onset of the litigation, the Boulder Daily Camera reported that Boulder and San Miguel leaders were recruited by out-of-state interests and are receiving pro bono legal support from D.C.-based EarthRights International, which is funded by a number of wealthy benefactors long opposed to the oil and natural gas industry.
Bottom Line: State climate lawsuits are not an effective tool to combat climate change. Instead, they seek to obstruct safe and responsible oil and natural gas development that the country and world depend on. With the Solicitor General’s brief filed, the Supreme Court now has the opportunity to resolve this pressing jurisdictional issue and pave the way for a unified federal response, rather than a collage of state lawsuits that actually hinder an effective environmental response to shared decarbonization goals.
