WASHINGTON (Legal Newsline) - A group of 20 state attorneys general has joined the oil industry in calling for the U.S. Supreme Court to hear a Hawaii lawsuit over climate change, saying the case offers a “unique opportunity” to decide whether state courts have the power to effectively drive national energy policy.
The lawsuit by the City and County of Honolulu accuses oil companies of accelerating climate change by misleading consumers into consuming fossil fuels. Honolulu’s claims are framed as violations of state consumer-protection laws, but the AGs of Alabama, Indiana, Kansas, Texas and 16 other states say the real aim of the lawsuit is to cripple the oil and gas industry.
Any sale of fossil fuels anywhere on earth allegedly contributes to Honolulu’s damages, the AGs say in a writ of certiorari seeking Supreme Court review, meaning the Hawaii case really involves questions of interstate and international law that can only be decided by Congress or in federal courts.
“An action seeking abatement and damages for an alleged `global climate crisis’ must be governed by federal law, so Honolulu’s state-law claims fail,” the state AGs say. Companies like ExxonMobil, Chevron and Sunoco have also asked the Supreme Court to intervene, saying the Hawaii case is the only one in position now to allow the court to decide once and for all whether state courts can hear climate lawsuits.
The Supreme Court has thus far refused to wade into climate-change litigation, last year rejecting a plea by ExxonMobil and Chevron to overturn decisions by federal courts around the country to transfer cases back to state courts where they were filed. Those cases were over where case can be heard, however, while the Hawaii case is headed for trial and presents the central question of whether state law even applies.
“This case may be a unique opportunity,” the AGs say. The Supreme Court “should act before state courts issue preliminary relief that could trigger a national emergency or fashion a patchwork of new taxes on the nation’s energy system that would make life harder for every American.”
Oil companies scored some successes early on in climate litigation when federal appeals courts in New York and California ruled the federal Clean Air Act barred lawsuits over interstate emissions of greenhouse gases. In a 2018 decision, for example, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.”
Private lawyers led by Sher Edling retooled their legal theories in the face of those defeats, recasting the claims of their government clients as involving violations of state, not federal law. So far federal courts have mostly agreed with the approach, rejecting attempts by defendants to remove cases to federal court.
The AGs, many of them from oil-producing states, argue any lawsuit accusing the oil industry of aggravating climate change necessarily involves matters governed by federal law, however. Otherwise each state could dictate energy policy for the others by imposing crippling costs on oil and gas companies unless they cease selling their products everywhere.
The claims of consumer deception are ludicrous, legal scholars Richard Epstein and John Yoo argue in an amicus brief to the Supreme Court. Under Honolulu’s theory, the oil companies have damaged the city by conducting a “disinformation campaign” that caused consumers worldwide to burn more fossil fuels than they would have, had they known the true risks of global warming.
Honolulu claims the oil companies “are in possession of information on global warming of which the plaintiffs are ignorant,” Epstein and Yoo wrote. “But nothing could be further from the truth. Information about climate change is a matter of public knowledge and can be obtained from many different sources, each with its own distinctive perspective.”
Hawaii has “an active Office of Consumer Protection,” they note, yet neither that office nor the Federal Trade Commission has ever pursued the defendant companies over supposed misinformation about greenhouse gases.
The defendants argue federal common law – judge-made law covering interstate disputes – is the only applicable law in these cases.