Latest posts by H. Sterling Burnett (see all)
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The U.S. Department of Justice (DOJ) has entered the legal fray in the lawsuits filed by San Francisco and Oakland against oil companies seeking damages for their alleged contributions to climate change. The Trump administration’s DOJ filed an amicus brief harshly criticizing the lawsuits and asking the court to dismiss them. The DOJ’s main argument for dismissing the lawsuits is they violate the separation of powers established in the U.S. Constitution. The cities’ lawsuit is a backdoor way to have themselves, through the courts, regulate interstate and international commerce by limiting an activity approved by the federal government. As such, it violates the Constitution’s provision delegating the power to regulate interstate commerce solely to the Congress of the United States. In the brief, acting Assistant Attorney General Jeffrey Wood says the cities’ claims are preempted by the Clean Air Act, which regulates air emissions, meaning the regulation of carbon dioxide is properly in the hands of the president, not the cities or the courts.
“Rather than impose a liability scheme for the cost of adaptation, Congress has given the Executive Branch authority to regulate the underlying emissions within the confines of the Clean Air Act, thereby speaking directly to the effects of climate change like sea level rise,” wrote Wood in the brief. “Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government in the first instance.”
DOJ filed its brief on May 24, ahead of a hearing in the U.S. District Court on the oil companies’ motion to dismiss the case, just a month after 15 state Attorneys General filed their own friend of the court brief asking the Federal courts to dismiss Oakland and San Francisco’s frivolous climate claims.
Led by Indiana Attorney General Curtis Hill (R), Republican attorneys general from 15 states asked the presiding judge, William Alsup, to dismiss a climate liability lawsuit against five oil companies brought by the cities of Oakland and San Francisco.
Joining Hill in seeking dismissal of the case are the attorneys general from Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
The AGs argue whether or not to address climate change is a matter best left to the legislative branch of government, not the judiciary. “Plaintiffs’ objections to fossil fuel use are based in public policy, not law, and are thus not appropriate for judicial resolution,” the brief says.
The AGs also say the cities’ claims could “jeopardize our national system of cooperative federalism” by allowing certain cities or states to set energy policies to the whole nation. This echoes U.S. Environmental Protection Agency Administrator Scott Pruitt’s reasoning for reevaluating California’s Clean Air Act waiver which allows it to set emissions standards tighter than federal limits.
“Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country,” Pruitt said in an April 2 press statement EPA released upon announcing it was rescinding draconian Obama-era fuel economy standards and timetables.
The brief also argues allowing the cities’ lawsuit to go forward and be successful could open the cities themselves up to class-action lawsuits for billions of dollars in damages.
“[Cities are suing for] nothing more specific than promoting the use of fossil fuels,” the AGs write. “As utility owners, power plant operators, and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”
The AGs also argue by demanding oil companies pay for sea walls and other climate mitigation and abatement programs, Oakland and San Francisco are attempting to regulate interstate commerce, a function assigned solely to Congress in the U.S. Constitution.
“Imposing such financial consequences on business activity contravenes Congress’s exclusive power to regulate interstate and foreign commerce,” the brief says.
In a separate case, in mid-April Boulder County, the City of Boulder, and San Miguel County in Colorado became the first municipal governments not on a coastline to file a climate-related lawsuit against oil companies. They are suing ExxonMobil and Canada-based Suncor Energy to force these companies to pay for what the plaintiffs call “their fair share of the costs associated with climate change impacts.”
The Colorado oil and gas industry issued a statement to the Boulder Daily Camera, calling the lawsuit a “political stunt” and saying the industry should not held liable for damages when it adheres to existing “already stringent state and federal laws.”
Colorado AG Cynthia Coffman is a party to the 15 state AGs’ brief opposing the Oakland and San Francisco lawsuit. In early April, Coffman also argued a case before the Colorado Supreme Court, defending the Colorado Oil and Gas Conservation Commission, the regulatory agency that oversees oil and gas development in the state, for not imposing climate-related health and safety restrictions on oil and gas leases in a case brought by environmental groups on behalf of six teenagers.
One hopes Coffman, alone or in concert with other AGs who realize oil and gas production and use is a valuable, highly regulated, legal activity critical to American energy security and economic prosperity, will challenge the Colorado lawsuit as well.
Since it is the cities filing the lawsuits and their residents, not primarily oil and gas companies, who actually burn the fossil fuels which they complain are causing harm, I propose the plaintiffs’ city governments stop using coal, gas, gasoline, and oil to power their emergency and police fleets and other government vehicles and to keep the lights, heat, refrigeration, and air conditioning on in their buildings. Although it is a radical proposal, it is in keeping with the threat they say fossil fuel use poses. Unless and until the cities suing oil companies stop using their products, the courts should dismiss the lawsuits.
These lawsuits, pushed by anti-fossil fuel, climate change fearmongers and opportunistic politicians looking for a new, deep-pocketed source of revenue in a time of tight state and local budgets, endanger the very existence of modern, industrial civilization. If the plaintiffs prevail, Americans will find their freedom to travel and live where they want curtailed by skyrocketing energy costs, and the reliability of their supply of electricity drastically reduced.