End leftist activists’ climate lawfare

OPINION:

Climate lawfare has been a problem for more than a decade but may be coming to an end soon.

Lawfare is the attempt to use the courts or judiciary to intimidate, hinder, damage, delegitimize, bankrupt or change the fundamental operations of a company, industry or interest group. It’s also when the legitimate legislative mechanism fails to produce a result desired by the plaintiffs.

In short, lawfare is an effort to get courts to legislate from the bench, substituting their judgment for that of the democratically elected representatives of the people in state houses and Congress.

Climate change activists have been using lawfare to impose restrictions on fossil fuel use and penalize companies that produce and distribute coal, oil and natural gas. These lawsuits have been filed even though hydrocarbons are essential for fuels and power generation, as well as processes and products essential to steel-making, concrete production, agricultural production and any of the more than 6,000 products in daily use that utilize or are composed of plastics.

Dozens of lawsuits have been filed by climate activist law firms and cities against fossil fuel companies and industry lobbying groups —supposedly on behalf of residents and individuals, like youths. It’s an attempt use the court system to impose carbon dioxide restrictions.

But with the single exception of a case in Montana, climate activists’ lawfare efforts have thus far failed, having been tossed out of federal courts in California and state courts in Maryland, New Jersey, New York and Pennsylvania.

In 2018, a judge for the federal district court in the Northern District of California dismissed a lawsuit brought by the cities of Oakland and San Francisco against five oil companies, arguing that the firms should be held liable for harms allegedly caused by climate change.

In that case, Judge William Alsup ruled that the federal government — not cities, states, or the judiciary — is best suited to determine what, if anything, to do about carbon dioxide emissions from the use of fossil fuels.

“[P]laintiffs’ claims require a balancing of policy concerns … Importantly, ‘[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,’” wrote Judge Alsup.

He also noted that the potential harm of fossil fuel emissions must be weighed against the tremendous benefits they deliver.

In 2020, a three-judge panel of the Ninth Circuit Court of Appeals dismissed a lawsuit brought on behalf of 21 youths by the climate legal advocacy group Our Children’s Trust, on the same grounds.

The judges wrote that the case represents “a direct attack on the separation of powers … any effective plan would necessarily require a host of complex policy decisions entrusted … to the wisdom and discretion of the executive and legislative branches.”

Despite the costly mounting losses, new lawsuits keep getting filed, clogging the courts and wasting billions of dollars. This money could have instead been used by the industry to develop new production, better secure American energy dominance and lower costs for consumers.

Fortunately, direct climate lawfare efforts may soon be coming to an end. Until recently, the Supreme Court has been loath to move state climate lawsuits to federal courts, despite clear and legitimate interstate commerce and federal supremacy concerns.

However, in February, the court accepted a climate lawfare case out of Boulder, Colorado, in which the city is contending that oil and gas companies have knowingly exacerbated climate change, causing millions of dollars of damage to the city, county and people.

The oil and gas companies, as they have in other jurisdictions, asked state courts to dismiss the case, arguing that the state law claims are superseded by federal environmental laws and the federal government’s power to conduct foreign policy.

A broad ruling for the companies and against Boulder — with a finding that the claims in Boulder’s lawsuit fall solely under national purview — could end this type of lawfare.

A narrower ruling (and narrow rulings are what the Supreme Court loves to issue) could remove the lawsuit from state courts, leaving it and similar cases for federal courts to decide.

This would likely mean fewer consolidated lawsuits, cases that would likely end up before the Supreme Court eventually, especially if federal courts split concerning the merit of such lawsuits. A finding for the plaintiffs and the sue-a-thon continues.

Another, more direct effort to end climate lawfare is also underway. Rep. Harriet Hageman, Wyoming Republican, recently introduced the Stop Climate Shakedowns Act of 2026, which “would shield oil companies from a growing number of state lawsuits and bills that seek to force them to pay billion-dollar penalties” relating to climate change.

This bill is more than a decade overdue. The time is now for the Supreme Court and Congress to end climate lawfare once and for all.

• H. Sterling Burnett, Ph.D., (hsburnett@heartland.org) is director of the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute, a non-partisan, non-profit research organization based in Illinois.