The
Supreme Court
has an opportunity to make clear, yet again, that the people’s federally elected leaders, namely Congress and the executive branch, have the authority to create meaningful policies on global
climate change
, not states or municipalities.
In 2007, the Supreme Court in Massachusetts v. EPA determined that the
Environmental Protection Agency
has the authority under the Clean Air Act to regulate emissions that are linked to global climate change. Since that decision, the EPA has used its Clean Air Act authority to regulate greenhouse gas emissions. But this past June, the Supreme Court in West Virginia v. EPA determined that the EPA had exceeded its statutory authority set forth by Congress. The court’s 6-3 decision put Congress on notice that it needs to step up and make clear the extent to which greenhouse gas emissions can be regulated by EPA.
Congress responded by passing the so-called Inflation Reduction Act, which in part addressed the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act. Indeed, President
Joe Biden
publicly declared when he signed the Inflation Reduction Act into law that it would allow the United States to meet all of the climate goals he set during his campaign.
In the Inflation Reduction Act, Congress established grant programs, provided clean energy tax incentives, and even gave the EPA clear authority to regulate certain greenhouse gas emissions. So it appeared that the Supreme Court’s order had been properly heeded by Congress and accepted by the executive branch.
That is, until a few weeks ago when the Biden administration’s solicitor general claimed climate change initiatives, which are matters of international importance, should instead be handled by state courts.
For the last two decades, states and municipalities, prodded along by environmental activists, have filed lawsuits based on various legal theories to seek damages from the fossil industry, energy companies, and utilities for the costs of climate change. To stop these legal tactics, which ultimately circumvent the EPA’s authority under the Clean Air Act, the Supreme Court, in a unanimous decision written by Justice Ruth Bader Ginsburg in 2011, rejected one such effort (AEP v. Connecticut) and recognized that proper remedies are a matter of federal legislative and regulatory authority.
However, states, municipalities, and activists have persisted with attempts to shimmy around this legal precedent by bringing lawsuits under a number of state laws — tort laws, consumer protection laws, securities disclosure laws, etc. And as a result, the courts are split as to whether climate tort cases are a matter of federal or state law.
Adding to the confusion is the Biden administration’s endorsement of these state-driven lawsuits.
What’s striking about the Biden administration’s position is that it is at odds with the Obama administration’s opinion that federal law governs interstate emissions cases. Furthermore, it ignores the unanimous Supreme Court decision affirming this position and contradicts the president’s recent claims that the Inflation Reduction Act sufficiently addressed climate change.
Now, the Supreme Court once again has the opportunity to bring order to climate change litigation via the petition Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County. Granting a review of this petition, and the jurisdictional question contained therein, would help clarify that only Congress and our regulatory bodies have the authority to determine climate change policies. Those who disagree with such policies should seek recourse in the election booth — not by pursuing so-called state claims in state courts.
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Mark W. Menezes is the former deputy secretary of the U.S. Department of Energy and former chief counsel on energy and environment for the U.S. House of Representatives Committee on Energy and Commerce.
