More than a dozen major energy companies want the Supreme Court to review a decision out of Hawaii allowing lawsuits by local governments for their contributions to damage caused by global climate change.
Sunoco, leading a group of 15 energy companies, asked the justices to consider an October decision from the Hawaii Supreme Court that allowed the city and county of Honolulu to sue them in state court. The court said changing climate patterns brought on in part by greenhouse gases have damaged property.
In a novel legal argument, Honolulu claimed in a 2020 lawsuit that the companies violated state laws such as trespassing, public and private nuisance, failure to warn, negligence in warning and strict liability claims. Honolulu pointed to rising sea levels, flooding, beach loss and erosion and other environmental concerns such as “habitat loss of endemic species” as the grounds for the lawsuit.
The companies point to a decision of the 2nd U.S. Circuit Court of Appeals, which ruled that local climate lawsuits are invalid because federal law trumps state law claims against the oil giants.
The energy companies argue that the Supreme Court must hear the challenge and settle the conflict.
The Hawaii case presents a “recurring question of extraordinary importance to the energy industry, which is facing dozens of lawsuits seeking billions of dollars in damages for the alleged effects of global climate change,” their petition to the high court read.
“In these cases, state and local governments are attempting to assert control over the nation’s energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with the policies and priorities of the federal government. That flouts this court’s precedents and basic principles of federalism, and the court should put a stop to it.”
Ted Boutrous, a lawyer representing the fossil fuel companies, noted that the 2nd Circuit’s decision recognized that a similar lawsuit, filed by New York City, was “such a sprawling case” that it was “simply beyond the limits of state law.”
“Global climate change requires a coordinated international policy response, not local litigation attempting to hold energy companies liable for worldwide lawful and essential energy production,” Mr. Boutrous said. “State court litigation is not a constitutionally appropriate route through which to address energy policy and the national and international challenges of climate change.”
The industry appealed to the high court just days after 19 Republican state attorneys general called on the justices to block another spate of lawsuits from Democratic-controlled states and cities using the climate change argument to sue oil and gas producers in their jurisdictions. The unusual joint appeal specifically seeks to stop lawsuits brought by California, Connecticut, Minnesota, New Jersey and Rhode Island, according to The Associated Press.
“They do not have authority to dictate our national energy policy,” Alabama Attorney General Steve Marshall said in a statement last week announcing the lawsuit. Connecticut Attorney General William Tong, a Democrat, dismissed the appeal as “pure partisan political theater.”
Legal vs. illegal
Attorneys for Honolulu argue that their lawsuit differs from the New York City legal battle, which focused on the lawful conduct of fossil fuel companies and global climate change. Honolulu’s case focuses on alleged unlawful actions, such as failing to warn affected jurisdictions of the potential damage of their activities.
The city urged the Supreme Court to wait for the legal argument to go through lower courts.
“The same defenses are in fact currently being adjudicated by courts in four different states. Rather than short-circuit the ordinary percolation process, this court should deny certiorari,” Honolulu’s attorneys argued in their filing.
Attorneys for the city declined to comment for this report.
The justices will discuss the dispute during their private conference on June 6. For oral arguments to be granted, four justices would have to vote in favor of reviewing the Hawaii Supreme Court decision. Those would be during the next term, which begins in October.
Mark Grady, a law professor at the University of California, Los Angeles, said Honolulu appeared to be trying to define oil production as a nuisance that a local jurisdiction can regulate.
“How can that be? On the same theory, cattle ranching would be a ‘nuisance.’ How could the courts possibly assess what the optimal/economic allocation of carbon abatement would be among industries and firms. A risk would be that the oil companies would comply with this crazy legal theory and use it as an excuse to agree to restrict output and drive prices up to the cartel level to their benefit and to the detriment of consumers,” he said in an email to The Washington Times.
Since 2017, dozens of state and local governments across the country have filed lawsuits saying fossil fuel giants’ production, marketing and sales have contributed to climate change. Those claiming injury include Baltimore, San Francisco and Boulder, Colorado.
Contact the author
Please read our comment policy before commenting.