Hosted by The Washington Times’ Editor-at-Large Alex Swoyer in partnership with the Article III Project (A3P), “Climate Lawfare” examines the escalating legal battles over climate policy, from state attorneys general to the nation’s courtrooms, and what is really at stake for energy and the rule of law.
In a fireside chat, Sen. Kevin Cramer, North Dakota Republican, looks at the Suncor dispute. He says state and local liability rules threaten federalism and that “lawfare” works by wearing down energy producers. He also said a new bipartisan permitting bill would limit who can sue and how long they have to do it. He weighed in on whether Congress or the courts will end the fight.
[SWOYER] It’s a busy time of year, that’s for sure, especially ahead of November. Your colleagues, Senator Cruz and Chairman Grassley, had filed a brief in this case, the Suncor dispute. And basically what they’ve set the stage and talked about is, imagine oil in North Dakota being extracted and used to fuel North Dakota cars that are driving on North Dakota streets, but yet someplace like Colorado is setting liability standards that just seem to run afoul of federalism, as they argue. What do you think?
[CRAMER] I find it’s always best to agree with Chuck Grassley, and when it’s him and Ted Cruz, it’s especially true. But it’s also true because they know what they’re talking about.
So it’s interesting, because North Dakota, not only are we a major oil producing state, we’re a major coal producing state. So long before Harold Hamm cracked the code of horizontal drilling and fracking to create this whole new world of light, sweet crude, Minnesota taxed North Dakota coal, lignite, which we don’t send to Minnesota, but we send them electricity, which they’re happy to pay very little for because it’s so low cost. But we do it by burning the coal at the mine mouth in North Dakota. And they created an externalities tax on that coal, saying, you know, we’re going to add this tax to this electricity, which of course, guess who it hurts the most? Minnesota ratepayers. We prevailed in opposing that. It’s a very similar situation to what Suncor is dealing with, because it is anti-federalism.
And by the way, I am a big-time states’ rights advocate, and I understand that there are certain very few things that the federal government has jurisdiction over, like defending the country against foreign enemies and interstate commerce. This is not that. So I think Boulder and others who have tried this sort of method — and by the way, before I even judge it on a constitutional or legal basis, and I did dodge the whole idea of going to law school, so I didn’t do that, but I do understand this fairly well, because at the end of the day, at the end of the day, you simply can’t have a patchwork of laws determining what other states do in their own states, much less a community or a city. But they do have the chilling effect, even if they’re not successful legally, they have the chilling effect of sending really bad market signals.
[SWOYER] Yes, and setting precedent, because if this works here, we’re going to see other states go ahead. We’ve already seen Hawaii and that sort of thing.
Former Attorney General Bill Barr, he talked about the real punishment here is the process, trying to make these oil and energy companies, fossil fuel companies, go through trial, discovery, for example. The cost of discovery. Is there anything Congress can do? Or to step in and protect that? Like, what access these environmentalists could get through the discovery process, trying to get these fossil fuel companies into court?
[CRAMER] So yes, and we’re actually doing that as we speak. Interestingly, just today, the Environment and Public Works Committee that I serve on, and I chair the Transportation Infrastructure Subcommittee, released, along with, by the way, the Democrats, released a bipartisan permitting reform bill. And one of, in fact I think the most important part of the bill, deals with expedited judicial review. Expedited judicial review is a real thing, clearly understood by those who did go to law school and those in the judiciary. And what it really does, in simplest terms, is, first of all, it more strictly defines who’s got standing to bring a suit.
[SWOYER] Right. And that’s an issue in this case, too.
[CRAMER] It definitely is an issue in this case. And remember, this is something that was negotiated between Mike Lee, who is chairman of the Energy and Natural Resources Committee, and Shelley Moore Capito, the chairman of the Environment and Public Works Committee, with Martin Heinrich, the ranking Democrat in ENR from New Mexico, and Sheldon Whitehouse, who’s no shrinking violet when it comes to defending clean energy. So they’ve agreed on this language to reduce, not only define who has standing, but to reduce the permitting or the judicial timeline from 150 days. In other words, you only have 150 days from the time that something would be filed to then file a lawsuit. Right now it’s six years.
[SWOYER] Wow.
[CRAMER] Think of that. The standing issue. First, you don’t even get the right to file a lawsuit unless, somewhere in the rulemaking, you’ve actually opined.
[SWOYER] And I think that would cut down. I think if I looked, last time I checked, there were more than 30 of these types of lawsuits. So that would also help clear some of the court system.
[CRAMER] It would, because lawfare works best with more litigants. And if everybody’s allowed to be a plaintiff, guess what? You don’t even have to come close to being successful to screw the whole thing up.
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Watch the video for the full conversation.
Read more: Supreme Court to weigh climate lawfare dispute Monday
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