Politicians have nearly stopped talking about climate change, a recent analysis shows. They recognize that a bigger concern for Americans is the high cost of living. In the background, however, state lawsuits against energy companies that aim to drive up energy prices are proceeding full steam ahead through the court system.
One of these cases, SunCor Energy, et al. v. City of Boulder, is currently pending before the Supreme Court, awaiting a decision on whether to review it. It’s the latest of several that have sought cert in recent years, and it has the distinction of a rare unsolicited amicus brief from the U.S. government in support of review. This century, the court has granted cert in every case, when a quorum existed, in which one was filed.
The court should accept this case. The city of Boulder is effectively seeking to assert control over the nation’s energy policies by alleging state law claims for nuisance and trespass. Boulder’s claims should be dismissed because they are clearly preempted by federal law; indeed, for over a century, the Supreme Court and federal courts have consistently held that claims involving interstate pollution are governed by federal law.
As a retired Arizona Supreme Court justice, I am gravely concerned about these types of climate lawsuits. They cause the public to lose trust in the justice system, as the court systems that exist to provide redress for wrongdoing are misused to enrich law firms working on contingency for state and municipal officials.
“Public-agency litigation should be about seeking justice and representing the public interest,” Gale Norton, former Colorado attorney general and interior secretary under President George W. Bush, told the Washington Free Beacon. “When contingent fee attorneys are controlling the litigation, they often put their individual interests ahead of the public interest. They seek large damages, so they can collect a large percentage for themselves.”
More tangibly, such litigation costs money, as all expenses are ultimately passed down to consumers in the form of higher energy costs.
“Essentially, the tort liability is an indirect carbon tax,” said David Bookbinder, a former member of the legal team that sued energy companies on behalf of Boulder County, Colorado. “You sue an oil company, an oil company is liable, the oil company then passes that liability on to the people who are buying its products.”
Americans will be poorly served if the Supreme Court does not take up a case designed to increase the cost of energy.
The kicker is that the ultimate goal of lawsuits like the City of Boulder’s is not to reduce the use of fossil fuels, but to profit from their use. Those suing are counting on consumers continuing to use energy and continuing to pay.
“Those assets will continue to produce,” Brookbinder said. “Oil and gas will not suddenly stop coming on the market.”
These lawsuits have proliferated as a result of a calculated, yearslong campaign by climate activists. There are currently more than 30 filed in the United States by states and municipalities, with more likely to come as those involved actively recruit additional plaintiffs.
The first of these suits wasn’t filed until 2018. It was the fruit of a workshop, “Establishing Accountability for Climate Change Damages: Lessons From Tobacco Control,” hosted in June 2012 by the Union of Concerned Scientists and the Climate Accountability Institute in La Jolla, California. Attendees plotted “climate legal strategies” to take on major oil companies and discussed how the “greater public’s, including judge and jury, acceptance of the causal relationships of climate impacts to fossil fuel production and/or emissions enhance the prospects for success.”
To increase their chances of success, climate activists are also educating judges on how to understand and side with the plaintiffs’ point of view.
Hawaii Supreme Court Chief Justice Mark Recktenwald is one of many judges who have attended or participated in seminars on climate change with the Environmental Law Institute’s Climate Judiciary Project. It seeks to train judges on climate science, the effects of climate change, and climate science in the law with “authoritative, objective, and trusted education.”
Tellingly, one of its major funders, the MacArthur Foundation, which gave $500,000 to ELI in 2020, explained that the support for the group would lead to “better-informed decisions and ultimately build a body of law supporting climate action.”
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It is not appropriate for judges to be trained by outside groups in how to interpret information in cases over which they will preside.
In 2024, 63% of Americans agreed that courts are “committed to protecting individual and civil rights.” Judges must protect that trust by refusing to allow special interests to hijack the court system with novel theory lawsuits that are fundamentally a form of lawfare. Here’s hoping that the justices of the U.S. Supreme Court will act to stop these misguided cases once and for all.
Andrew Gould is a partner at Holtzman Vogel and a former Arizona Supreme Court justice.
