Supreme Court calls into question efforts to address climate change impacts through state courts

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ICYMI: Energy Fairness Executive Director Paul Griffin authored an article in The Daily Sentinel arguing that climate policy should be set by Congress, not the Supreme Court. The original piece can be viewed here.

In May, the Supreme Court issued a blow to climate lawsuit advocates seeking to legislate climate change policy through judicial rulings in state courts. In a 7-1 decision authored by Justice Neil Gorsuch, the court made things a little more difficult for the ability of the litigation advocates to do such an end-run around Congress and the federal courts.

What makes the Gorsuch decision noteworthy? First, to understand its true significance, it’s important to have some background on why this case ended up in the Supreme Court’s lap. After all, the highest court in the land only considers just over 2% of cases seeking its review.

The Gorsuch decision stems from a lawsuit brought by Baltimore against 23 energy companies in Maryland state court. The Baltimore suit claims that when other people use these energy companies’ products, namely fossil fuels, the resulting carbon emissions has led to climate change, rising sea-levels and flooding in Baltimore, a port city.

The energy companies tried to move the state-filed suit to federal court, arguing the regulating carbon emissions from energy sources is a uniquely federal issue. After all, the federal government awarded the drilling contracts leading to the production and sale of much of this energy. The case as of now is focusing on the jurisdictional question as to whether the lawsuit can go to federal or state court.

This decision has particular relevance here in Colorado considering Boulder, Boulder County, and San Miguel County filed a similar lawsuit back in April 2018. These Colorado governments also filed their lawsuit in state court — and in January this year — a federal judge complied with their request to keep it in state court.

So what did the Gorsuch decision ultimately decide? From a legal perspective, it said the federal appeals courts must consider the whole spectrum of arguments made by the defendants when deciding whether these cases belong in state or federal court.

More importantly, the Gorsuch decision reminds us that the Supreme Court had already spoken on what role the courts should play in regulating carbon emissions. None. At the tail-end of his decision, Justice Gorsuch reinforces that Congress makes climate policy, and “…Congress is of course free to revise its work anytime. But that forum, not this one, is the proper place for such lawmaking.”

In the 2011 American Electric Power vs. Connecticut decision, the court clearly stated that states and private entities could not seek to reduce carbon emissions through lawsuits. As the late Justice Ruth Bader Ginsburg noted in reading the court’s decision, “they (plaintiffs) asked the court to set carbon emissions limits for each defendant at an initial cap and to order further reductions annually.” But, as she later makes clear, “Congress has vested decision-making authority in the EPA.”

Climate policy should not be decided in state courts or through any other imaginative interpretation of federal law. This is true for the Baltimore suit for which Gorsuch wrote the opinion, the suit filed by the Colorado governments in Boulder and similar lawsuits filed around the country. At least four federal circuits will be deciding the federal/state issue in light of the Gorsuch opinion. They should keep the cases in federal court.

Previously, I served as a senior legislative assistant to U.S. Rep. Greg Walden — then the House Energy and Commerce Committee Chairman — negotiating significant legislation in areas of energy, and as a government affairs representative for the National Rural Electric Cooperative Association. I can attest from prior professional experience that both energy policy and real-life operations are most effective when we take advantage of the benefits of all fuel sources: natural gas, wind, solar, hydropower, oil, coal, and nuclear.

Lawsuits that level recriminations and obstruct our ability to take advantage of all energy sources are counterproductive and defy the role of Congress to address climate challenges. In Colorado, we benefit by having an abundant supply of natural resources, allowing stakeholders in our state to innovate new technology to address climate impacts. We shoot ourselves in the foot when officials in our own state sue the very companies that are bringing these innovation solutions.

These lawsuits are also very unpopular. A Manufacturers Accountability Project poll found that “50% strongly agree in innovating meaningful solutions to climate change, not blaming one industry for a problem to which we’ve all contributed; in contrast, only 5% strongly disagree with this message.”

The threat carbon emissions pose is real. We must act to reduce global carbon emissions in a manner that also keeps the U.S domestic energy supply affordable and reliable. Fortunately, the Supreme Court’s precedent is in alignment that the courts should not have a role in deciding climate-based lawsuits. Congress and Congress alone must set future climate policy.

Paul Griffin serves as the executive director of Energy Fairness. With more than nearly two decades in the energy sector, he has served on the front lines of American energy conversations, advocating for consumers and shaping energy policy that is fair and sensible. He splits time between Lafayette, Colorado, and Washington, D.C.