OPINION:
As Virginia’s attorney general and then governor, I spent years defending the right of states to regulate and protect their own environment.
What I never defended was the effort of one state to impose its preferred policies on the others, least of all when those policies would saddle every American with steep costs while doing little to solve the underlying problem.
Yet too many state attorneys general have embraced exactly that strategy in recent years, locking arms with activists and opportunistic plaintiffs’ attorneys in a coordinated litigation campaign to hijack national energy policy under the guise of tort law.
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Fortunately, the Supreme Court will soon have a chance to close the door on this campaign. On Oct. 5, it opens its term with Suncor Energy v. Boulder County, a bellwether for dozens of coordinated lawsuits that ask state courts, state laws and local juries to hold energy companies liable for alleged climate damages.
It should be the easiest case of the term, because the court has already answered the question at its heart.
Fifteen years ago, in American Electric Power v. Connecticut, eight states and New York City asked federal courts to cap carbon dioxide emissions from power plants as a common-law “nuisance.” The court refused, 8-0, in an opinion of the court written by Justice Ruth Bader Ginsburg.
Regulating greenhouse gases, Ginsburg explained, is a national question about a complex, global phenomenon — one for which federal judges “lack the scientific, economic, and technological resources an agency can utilize.” The Clean Air Act, she added, entrusts that “complex balancing” to the Environmental Protection Agency.
That is the right arrangement because the task demands weighing economic, environmental and geopolitical trade-offs all at once. It does not shut out the states; it calls for “extensive cooperation between federal and state authorities” rather than ad hoc court rulings pulling in different directions.
When the harm is local — a polluted river, a contaminated site — the state is the right regulator, and I defended that role for years. Setting the nation’s climate policy from a Boulder courtroom is another matter entirely.
Notice what the court did not say: that state courts were the proper forum for weighing these trade-offs.
If federal judges are not equipped for the task, then neither is a jury in Boulder, Honolulu or Charlottesville. Yet that is precisely where the campaign went.
After AEP, academics and contingency-fee lawyers convened in La Jolla, California, in 2012 and resolved to take their theory to state court. Frustrated that the federal door had closed and that, as former U.S. Attorney General William Barr put it, the “body politic has not decided to destroy our fossil fuel industry,” they went on the road to recruit political allies willing to enlist state courts to do the job.
The forum is the whole strategy. Because their position cannot withstand federal review, the plaintiffs have engineered these cases to stay in the state courts they consider friendliest — and they have acknowledged as much. California Attorney General Rob Bonta acknowledged that his state deliberately waited to file until it was certain the case could not be removed to federal court, a factor he called “close to being outcome determinative, meaning less likely chance of success in the merits in the federal court … versus state court … where we always wanted to be.”
In other words, a state jury might do what Ginsburg said no court should.
This is where my experience as an attorney general matters and why I feel obligated to speak. As a lifelong defender of federalism, I want the outcome that honors it. The states entered the union as sovereigns, and they kept the right to govern conduct within their own borders.
What they surrendered was any power to project their policies onto their neighbors. One state may not “project its legislation” into another. A locality may serve as a “laboratory,” Justice Brandeis wrote, but only “without risk to the rest of the country.”
Boulder’s lawsuit fails that test. It asks a Colorado jury to assign damages calibrated to energy produced and sold everywhere — including in states whose own laws actively encourage that production.
I spent my career insisting that states, not Washington, should answer the questions that belong to them; this case asks the court to enforce the other half of that same principle: that no state may answer the questions that belong to the nation as a whole.
Fifteen years ago, Ginsburg gave that answer for an 8-0 court, and the justices should have the resolve to stand by it.
• James S. Gilmore III was the 68th governor of Virginia and attorney general of Virginia.
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