The U.S. Department of Justice (DOJ) last Thursday filed an amicus brief in the cases filed by San Francisco and Oakland against energy producers, slamming the lawsuits and asking the court for dismissal. The lawsuits seek financial “damages” from energy companies for the risks posed by climate change.

The Northern District Court of California invited the DOJ to provide its expert opinion on the cities’ claims and advise on relevant information the court should consider for the case, in which the cities allege that combustion of the companies’ products create a public nuisance.

The DOJ responded with several compelling reasons why the cities’ grievances should not be afforded relief by this case: 1) it is logistically impossible to fix a problem of the magnitude the cities describe in court; 2) other parts of the government already regulate greenhouse gas emissions and the U.S. Supreme Court has already ruled that it is not appropriate for the Court to intervene; and 3) the cities may not even have the right to bring this type of claim to federal court.

In American Electric Power Co. (AEP) v. Connecticut, the U.S. Supreme Court dismissed claims against power companies for greenhouse gas emissions because Congress entrusted the Executive Branch with statutory authority to regulate emissions. The cities claim their case is different because they are targeting the producers, not the users.

But the DOJ points out that this case is still about the combustion of fossil fuels, not their extraction or sale – and that it boils down to the same issue the Supreme Court already addressed in AEP:

The Cities seek to evade AEP by suing producers of fossil fuels instead of consumers. But the Cities’ claims depend on the same fundamental theory of liability that the plaintiffs invoked in AEP: that the defendants should be held responsible for greenhouse gas emissions…

“[T]he Cities seek to hold the Defendants liable for exactly the same conduct (greenhouse gas emissions) and exactly the same alleged harm (sea level rise) at issue in AEP and Kivalina. And the Cities’ complaints confirm that this case is not about production of fossil fuels; rather, it is about emissions of greenhouse gases from the combustion of fossil fuels

“Although the Cities cast their allegations in terms of the production of fossil fuels, their claim of injury is legally and factually tenable only to the extent that it is predicated on emissions of greenhouse gases from the combustion of fossil fuels.” (emphasis added)

It’s unclear whether cities even have the authority to bring these types of cases, the DOJ points out. The Supreme Court has allowed only states and the federal government to assert federal common law of nuisance claims; it has never authorized cities to do so. And for good reason, too: the DOJ points out that non-state actors are more likely to be a burden on the courts and on defendants.

Besides the fact that the court already addressed this exact claim just seven years ago, the DOJ also observes that the scope of the lawsuit is prohibitively enormous.

It is impossible for a non-scientific body to define injuries from climate change and accurately assign culpability. And if the court accepts that cities can sue for damage from greenhouse gas emissions, then by extension, so can every one of the 7.5 billion people on Earth – each of which also contributes to the greenhouse gas emissions for which the cities are suing energy producers:

“Virtually every individual, organization, company, and government across the globe emits greenhouse gases. If these Cities may properly allege injuries from climate change, then so can every person on the planet

“The present litigation concerns the production and sale of fossil fuels in numerous states and foreign countries—products that are intermingled in complex, interdependent streams of international commerce. And the Cities’ claim for damages depends on the combustion of those products and the subsequent emissions of greenhouse gases by countless sources in every corner of the globe

“Thus, under the Cities’ own theory, innumerable foreign, federal, state, and local governments—including the Cities themselves—have contributed to the alleged harms. So has anyone who has ever driven a car.” (emphasis added)

These complex questions suggest the issue is better dealt with through policy rather than the judiciary. Congress has already taken care of that by delegating the power to regulate emissions to the Executive Branch, specifically the U.S. Environmental Protection Agency (EPA):

“Through the Clean Air Act, Congress has directly addressed the issue of climate change by granting authority to address greenhouse gas emissions under federal law to the Executive Branch, thereby displacing any remedy that this Court might otherwise create…

“Congress has charged EPA with addressing the same category of emissions that are at issue in the Cities’ claims; that fact alone suffices to displace any potential claims under federal common law

“The linchpin of AEP was Congress’ delegation of authority to EPA to regulate greenhouse-gas emissions; the Court emphasized that displacement did not turn on how EPA exercised that authority: ‘the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.”’” (emphasis added)

Here, the DOJ points out that the issue at stake here isn’t how the EPA regulates emissions, but whether it has the authority to do so. Just because several cities are unhappy with the way the EPA is regulating emissions does not mean the courts can wrest that power away from it.

Furthermore, the cities concede that they are also claiming damages from foreign emissions. Again, the DOJ argues that the court is not the right platform to address the cities’ concerns. The Supreme Court cannot create federal common law to regulate other countries. Simply put, the Supreme Court does not conduct diplomacy:

“Decisions as to whether and how to initiate these negotiations with foreign governments should be made by the Executive Branch and Congress, not by the judiciary

The extraterritorial reach of the proposed claims is another reason not to create a federal common law remedy here. To the United States’ knowledge, no federal common law of nuisance claim with an international component has ever been sustained by the federal courts…

“Even if the federal common law of nuisance could extend to conduct outside of the United States, such a nuisance claim would be displaced by the broad powers possessed by Congress and the Executive Branch in this arena: ‘the conduct of foreign relations is committed by the Constitution to the political departments of the Federal Government.’” (emphasis added)

The DOJ’s comments end with an especially salient point that cuts to the core of the issue. With this suit, the cities are rejecting the Constitutionally-protected separation of powers:

“The Cities’ claims violate constitutional principles of separation of powers

“The Cities’ claims would require that federal district courts take the exceptional step of creating a cause of action that would apply to virtually everyone and that would demand complex scientific and policy judgments more appropriately made by the political branches… With respect to regulation of greenhouse gases, the Supreme Court has cautioned that “[f]ederal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.” (emphasis added)