Tomorrow morning, the U.S. Supreme Court will discuss whether to add Honolulu’s climate lawsuit to the docket this term, marking the first time the Court has had a chance to weigh in on the merits of the litigation.
With news of whether SCOTUS will review the case coming as early as Monday, a slew of the nation’s leading government officials, legal experts, trade associations, and advocacy organizations have called on the justices to end the chaos of partisan climate lawfare.
Here’s what they are saying:
The Lawsuits Are an Attempt to Force Climate Policy Through the Courts
In ruling to allow Hawaii state law to hold companies legally liable for the lawful production and sale of oil and gas in other states and countries, the Hawaii Supreme Court effectively blessed Honolulu’s attempt to use state courtrooms to force far-left energy policies on the entire country.
This brazen attempt of extraterritorial reach led to a lawsuit filed last month by nineteen different attorneys general from Republican states – led by Alabama Attorney General Steve Marshall – with the U.S. Supreme Court to block climate lawsuits from Minnesota, California, New Jersey, Connecticut, and Rhode Island.
AG Marshall penned an op-ed in the Wall Street Journal in which he underscored the critical importance that the Supreme Court address the constitutional issues presented by climate lawsuits:
“While the Constitution preserves as expansive realm of state sovereignty, that authority ends at each state’s borders. Alabama doesn’t get to say what law applies to California, and Hawaii can’t regulate conduct in Indiana.”
Calling the lawsuits “an attempt to end-run federal pre-emption,” The Wall Street Journal editorial board encouraged the Court to grant cert and avoid a “bigger constitutional mess … down the road”:
“Letting state courts dictate nationwide energy policy would usurp constitutional federalism, as a Second Circuit Court of Appeals panel explained in dismissing New York City’s version of this lawsuit in 2021. […] If the Justices don’t intervene now, they will have a bigger constitutional mess to fix down the road.”
Similarly, Anthony J. Ferate, an Oklahoma City attorney, encouraged SCOTUS to grant review and help the Hawaii Supreme Court “understand that it is subject to well-established U.S. constitutional standards”:
“The Supreme Court should see the Hawaii action for what it is, accept cert, and help the Hawaii Supreme Court to understand that it is subject to well-established U.S. constitutional standards of jurisprudence and the rule of law to the detriment of Honolulu and climate change activists nationwide.”
The Stakes Couldn’t Be Higher
Several thought leaders reflected on what would happen if SCOTUS doesn’t offer guidance on the petition and overturn the Hawaii Supreme Court’s ruling. In short: it wouldn’t be good.
In a statement announcing the Republican Attorney Generals’ May 23rd lawsuit, AG Marshall underscored the risks to affordable energy, national security and consumers posed by the litigation campaign:
“If the Supreme Court lets them continue, California and its allies will imperil access to affordable energy for every American. That would threaten our national security and harm millions of Americans already struggling to pay for gas and groceries.”
This point was also made by energy policy analyst David Blackmon, who explained in a Forbes column that if the litigation were to succeed, then “the result could likely be the flight of billions of dollars in capital investment to other countries around the world”:
“Allowing any state to pursue such claims would open the door to companies having to do business in compliance with 50 separate sets of environmental requirements that should fall under the provisions of federal statutes like the Clean Air Act and Clean Water Act.
“Opening the question up to enabling individual cities or counties to pursue similar claims under state laws would create such a high level of complexity and chaos that it could become essentially impossible to do business in the United States. The result could likely be the flight of billions of dollars in capital investment to other countries around the world.”
Absent intervention now from the Court, the number of lawsuits, and their harm to consumers, could multiply. Donald J. Kochan, a professor at George Mason University, explained in a Bloomberg Law op-ed that a lack of intervention from SCOTUS at this juncture would send a bat signal to all potential plaintiffs considering joining the campaign:
“If the Supreme Court doesn’t intervene to grant the petition, it will be open season for similar lawsuits in city and county courtrooms in every state across the US. If the law allows that, then the Supreme Court should grant the petition and say so.
“If it doesn’t—which seems more likely under our constitutional design—the Supreme Court should grant the petition to stop the onslaught in state courts before it begins.”
Reminder: The Lawsuits Are Legally Baseless
Legal experts point to the fact the lawsuits are frivolous and hold no merit, in addition to harming consumers and infringing on state sovereignty.
Mark Grady, a professor at UCLA Law School, highlighted the absurdity of the plaintiffs’ attempts to define global oil production as a nuisance that any local jurisdiction can regulate:
“On the same theory, cattle ranching would be a ‘nuisance.’ How could the courts possibly assess what the optimal/economic allocation of carbon abatement would be among industries and firms. A risk would be that the oil companies would comply with this crazy legal theory and use it as an excuse to agree to restrict output and drive prices up to the cartel level to their benefit and to the detriment of consumers.”
Bottom Line: Leading legal experts agree: it is unlawful for a handful of progressive courts to dictate national energy policy across their borders. The Supreme Court has a unique opportunity to halt the climate litigation campaign in its tracks before it has a chance to compromise the American economy and our country’s standard of living.
