With the Supreme Court’s decision on whether it will review the jurisdictional question present in Colorado municipalities’ climate lawsuit expected as soon as Monday, legal scholars, former legislators, and attorneys general are encouraging the high court to take up the case and prevent climate suits from moving forward in state courts. On the eve of conference, here’s what they’re saying:
Claims Clearly Implicate Federal Issues
Indiana Attorney General Todd Rodika spoke out on the risks associated with granting state courts expansive power to determine issues that are global in nature and will affect both America’s economy and national security:
“In 2011, the Supreme Court reaffirmed it ‘would be inappropriate’ to apply state law to claims arising from transboundary greenhouse-gas emissions and climate change. This makes good sense. Greenhouse gas emissions inherently transcend state borders—the term, after all, is ‘global climate change’ not ‘Boulder County climate change.’” (emphasis added)
Theodore Garrish, Former Department of Energy Assistant Secretary of Energy for International Affairs, also drove home the fact that Congress – not the judiciary – is the proper forum to determine the balance between national environmental and economic issues:
“Allowing state courts to litigate matters of climate change overlooks that emissions have global sources and can’t be confined to a state’s borders. … [T]here’s nothing unique local about their complaints to substantiate why they should proceed in state court.” (emphasis added)
Further, Kentucky Attorney General Daniel Jay Cameron and Ambassador C. Boyden Gray pointed out that these suits are being used as vehicles to push climate policy while avoiding the necessary checks and balances required to pass legislation:
“These cases are undisguised ‘lawfare,’ which is a cynical ploy by environmental activists to achieve through courts what they cannot accomplish at the federal ballot box. … Progressive state and local officials should not be able to use their state laws and state courts to manipulate energy policy and hold every other state, the federal government, and the national energy supply hostage to their climate agendas.” (emphasis added)
Donald J. Kochan, professor of law and deputy executive director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School, described the “chaos” that could follow from allowing these cases to proceed in state court:
“Ultimately, the question is whether Suncor and similar cases can be heard in dozens of different states with the risk of inconsistent or conflicting verdicts that risk chaos in global energy markets, threaten energy security, and thereby compromise national security without any branch of the federal government having a role in the decision-making.” (emphasis added)
State Lawsuits Run Contrary to Effective Climate Policy
Other expert voices pointed out that America needs a comprehensive, unified approach to climate change – not a patchwork of rulings in state climate lawsuits that even the plaintiffs admit will have little effect on the global climate. In a recent op-ed, former Minnesota Senate Majority Leader Paul Gazelka argued that instead of making progress on combatting climate change, lawsuits could actually discourage investment in new technologies that reduce emissions:
“There are many ways we can address the [climate] concerns of the attorney general that make sense for all Minnesotans. But many strategies, including this litigation, can have significant downsides.
“Of most concern, this litigation could end up raising the cost we all pay for energy. Lawsuits also can hinder innovation efforts, such as carbon-capture technology, and the development of new energy sources. These downsides of the attorney general’s lawsuit cannot be considered by the courts.”
Gale Norton, former Secretary of the Interior and former Colorado Attorney General, also remarked that climate lawsuits inhibit Congress’s ability to form a national climate strategy that prioritizes America’s interests:
“If the growing number of climate lawsuits around the country are each decided in various state courts, a string of fragmented and contradictory rulings will result, which would hamper the ability of elected leaders and federal agencies to craft coherent policies. This litigation, if decided in favor of the municipalities, would produce chaos, not good policy.” (emphasis added)
Threats to Energy Security and National Security
Climate lawsuits also threaten our national security by surrendering market power in critical oil and natural gas markets to foreign and state-run energy companies. In a recent op-ed, Brigham McCown, a retired U.S. naval officer and a former member of the U.S. Senior Executive Service at the Department of Transportation, described the risk climate lawsuits pose to the operational readiness of the U.S. military:
“After food, fuel represents the greatest operational sustainment demand for the military and national security…Climate lawsuits threaten our military’s ability to obtain the oil and gas required to protect the country.” (emphasis added)
Pınar Çebi Wilber, executive vice president and chief economist for the American Council for Capital Formation, futher explained how climate lawsuits inhibit the country’s ability to balance “climate action goals with ensuring our energy security,” particularly if they proceed in state courts:
“Unfortunately, attacks on America’s energy producers — through punitive taxes and climate lawsuits — are counterproductive to America’s climate action goals and our need to meet energy demand.
“Endless lawsuits are only adding another hurdle for the industry and tying up resources that could be used for more productive activities, like improving efficiency or investing in research and development that could bring that next big clean energy advancement.” (emphasis added)
Bottom Line: The experts agree: allowing dozens of state courts to set climate policy through punishing American energy companies would cause “chaos” and undermine federal interests. The outcome of tomorrow’s discussion at the Supreme Court conference will have major implications for American innovation, national security, and energy affordability.
