WASHINGTON (Legal Newsline) - President Donald Trump now seeks to punish states planning to sue the energy industry over climate change, though judges handling suits against Big Oil have mostly refused to let them proceed.
On April 30, the Justice Department sued Michigan and Hawaii for their planned lawsuits against companies like Chevron and Exxon. Three weeks earlier, Trump issued an executive order on "state overreach" that states he is committed to "unleashing American energy."
The lawsuits target Michigan's plan to use private lawyers on a contingency fee (as other states, cities and counties have), as well as Hawaii's similar strategy, forged despite that state's reliance on the oil industry.
"As a result of state restrictions and burdens on energy production, the American people are paying more for energy, and the United States is less able to defend itself from hostile foreign actors," the DOJ wrote.
"At a time when states should be contributing to a national effort to secure reliable sources of domestic energy, Michigan is choosing to stand in the way. This nation's Constitution and laws do not tolerate this interference."
The cases are in two federal courts, while dozens of already-filed cases make their way, sort of, through states courts. Only in Honolulu's case have courts denied motions to dismiss by the defendants, and the U.S. Supreme Court refused to review that decision.
But judges on the mainland have granted motions to dismiss. Five judges, including two in Maryland and one in New York, have expressed concerns that though the cases make claims under consumer protection laws, they actually impact the global energy market.
Judge Videtta Brown, in Baltimore's case, said the litigation goes beyond the limits of Maryland law, or whatever states other cases are filed in.
"This Court holds that the U.S. Constitution's federal structure does not allow the application of state court claims like those presented in the instant cases," Judge Steven Platt wrote in tossing Annapolis' case.
"The States such as Plaintiffs here... can participate in the efforts to limit emissions collaboratively, but not in the form of litigation... If states and municipalities [or] even private parties are dissatisfied with the federal rulemaking or the outcome of cases, they may seek federal court review."
Around the country, the oil industry faces dozens of these cases, which allege consumers would not have burned as many fossil fuels as they did had companies been more forthright about their effects.
The litigation started with a battle over where the cases should be heard. Defendants wanted them in federal court to bolster their defense, and that strategy resulted in federal judges in California and New York granting motions to dismiss.
But the Supreme Court ultimately ruled the lawsuits belonged in various state courts because plaintiff lawyers had crafted their cases to make state law claims under consumer protection statutes and for public nuisance.
At issue is whether state court judges should have the power to essentially impact the international energy market. Twenty Republican state attorneys general argued the Hawaii case involves questions of interstate and international law that can only be decided by Congress or in federal courts.
The DOJ lawsuit makes many of the same points defendants have made, like air pollution is regulated by the federal Clean Air Act and only the federal government has the power to make these important energy decisions.
"Congress delegated to EPA the authority to determine whether and how to regulate greenhouse gas emissions, thereby displacing federal common law claims and occupying the field of interstate air pollution regulation," the suit says.
"The Clean Air Act's comprehensive framework, which includes specific provisions for regulating emissions from stationary and mobile sources, preempts state attempts to regulate out-of-state greenhouse gas emissions. Michigan's claims seeking to hold fossil fuel businesses liable for global greenhouse gas emissions usurp this federal authority."
Hawaii is the most-reliant state in the country on the energy industry, so much so the legislature codified it. Shortages of adequate supplies of petroleum products, one law says, would "pose a threat to the economic well-being of the people of the State, and have significant adverse effects upon public confidence and order..."
"Hawaii's attempts to impose extraterritorial and excessive burdens on fossil fuel companies, which will raise energy costs for consumers nationwide and disrupt the uniform regulation of fossil fuel production," the DOJ suit says.
"These harms affect a substantial segment of the population, and individual litigants, such as fossil fuel businesses, cannot fully address the nationwide economic and constitutional injuries caused by Hawaii's overreach."