The U.S. Supreme Court is considering whether or not to take up the case two challenges to climate litigation that seeks to extract billions of dollars from oil companies and other major emitters for allegedly wreaking havoc from climate change.
Last summer the The Supreme Court has asked the Ministry of Justice to do this to go into the matter. Solicitor General Elizabeth Prelogar submitted the brief last weekarguing that the justices should reject energy companies’ appeals and let the cases play out in state courts before the Supreme Court reviews them.
Should the Supreme Court reject the appeals, it is expected that the cases will go in favor of the anti-fossil fuel plaintiffs. Of Many such cases are filed across the country, businesses may find it easier to establish themselves, the costs of which will be passed on to consumers, impacting all goods and services. Likewise, major emitters – including oil companies, utilities, automakers and other heavy industries – will be forced to make costly emissions cuts or close altogether.
Feds support activist companies
In 2020, the city of Honolulu, Hawaii, filed a lawsuit against oil companies under state public nuisance laws. The city argues that greenhouse gas emissions are causing climate change and harming Hawaiians, and that the companies have misled the public about the dangers.
In February, the companies asked the Supreme Court to review a 2023 decision by the Hawaii Supreme Court rejected the companies’ argument that by attempting to regulate emissions, the lawsuit effectively regulated interstate commerce, which is the jurisdiction of the federal government.
In May, a coalition of attorneys general from 19 states, led by Alabama Attorney General Steve Marshall, filed a constitutional objection to similar cases filed by California, Connecticut, Minnesota, New Jersey and Rhode Island.
OH Skinner, executive director of the Alliance for Consumers, a nonprofit consumer advocacy group, said Just the news that Prelogar’s arguments differ from what you would normally expect from the federal government. When lawsuits at the state or local level affect the entire nation or usurp authority over what a federal agency does — for example, the EPA, which regulates emissions — the attorney general has historically protected federal authority. But in the case of climate lawsuits, the Biden-Harris administration argues that the lawsuits are not yet ready for Supreme Court review.
“It appears they are motivated by loyalty to the shady moneymakers behind these businesses,” Skinner said.
The companies tackling these issues are also based in San Francisco Sher Edlinghave been accused of being funded by a dark money campaign by anti-fossil fuel activists seeking to advance policies through the US legal system that would not pass in the legislature.
The House Committee on Oversight and Accountability last year started an investigation in Sher Edling, seeking more information about the “rich liberals” who are funding the lawsuits “aimed at bankrupting oil and gas companies.” In their responsethe company explained that bankrupting the companies would not be in their best interests because the companies would not be able to pay the settlements. The company also argued that their customers are not seeking damages for all the consequences of climate change, but only for those allegedly caused by the companies’ alleged deception.
Risky fight
If the Supreme Court were to follow the attorney general’s advice and move the cases through state courts, Skinner said the cases would pose a major risk to the oil companies. For example, Multnomah County, Oregon, is suing oil companies and a natural gas company, seeking $51.55 billion for reportedly causing a heat wave in 2021.
Although the event brought several days of high temperatures and was linked to 72 deaths in Multnomah County, it did not break the state record. 119 degrees set in 1898long before large amounts of fossil fuels were consumed. The link between the heat wave and the use of fossil fuels has not been legally established.
Skinner said it’s possible that with a wave of similar lawsuits hitting businesses all at once, companies will decide it’s not worth fighting them in court.
“I think that’s part of what you’re seeing here. The Biden administration is thinking, “Maybe if we force them to appear in court, they will settle for it.” Maybe we won’t get 50 billion, but maybe 3 billion.’ That’s the other risk. The longer this goes on, it’s going to be hell. Every small city and county will file one of these cases if one of them wins,” Skinner said.
In addition to the settlement costs that consumers will ultimately have to pay, if a company is unsuccessful in a nuisance case, they must remove the nuisance. For example, in 2014, the city of Irwindale, California, Huy Fong Foods suedmaker of the popular Sriracha hot sauce, about spicy scents coming from one of the company’s factories. Residents complained that the odors caused headaches, heartburn and watery eyes. The company addressed the issue and the city voted to drop the lawsuit in 2017.
If companies facing waves of climate lawsuits lose in court or settle, they will have to reduce emissions. That means either halting production or implementing emissions control technologies such as carbon capture, which are unproven technologies can be prohibitively expensive. Skinner said the total effect of all these cases will essentially be over Green New Deal through court orders rather than through the legislative process.
“What they’re really after is an injunction that would force the energy companies to stop global climate change because it’s global. It’s not just a spill in a bay or something. And what would they do if they won? It’s not a patchwork. It’s a racket. Every case they win forces the companies to stop producing or selling oil in other parts of the country,” Skinner explains.
There is nothing about the cases that would be limited to oil companies, and the financial incentives will lead to more lawsuits and new targets. Any major company that produces large amounts of emissions would be vulnerable, including utilities, automakers, steel mills and cement producers.
Other possibilities
Should the Supreme Court decline to review the cases, they could ultimately fail due to underlying constitutional issues, something Pregolar stated in her letter.
“It is fair to say that petitioners may ultimately prevail on their contention that respondents’ claims are barred by the Constitution … to the extent that the claims rely on conduct occurring outside Hawaii,” Pregolar briefly conceded.
Another possible bastion against anti-fossil fuel legislation is the new administration’s position on the climate lawsuits. It’s anyone’s guess how much attention the justices will pay to the arguments of a lame-duck government, but newly elected President Donald Trump has. promised to block “the wave of frivolous lawsuits from environmental extremists.”