If a beach erodes in Honolulu, can a company be sued for producing oil in Holland? And under Hawaii state laws to boot?
That’s the claim Hawaii’s capital city is making in a “public nuisance” lawsuit (Sunoco v. City & County of Honolulu) against international oil companies. It’s part of an organized legal strategy by Democrat-controlled cities and states hoping to use state and local laws and litigation to force changes in energy policy.
In addition to Hawaii’s challenge, the attorneys general of California, Connecticut, Delaware, Massachusetts, Minnesota, New Jersey, Rhode Island, Vermont, and Washington, D.C. have filed lawsuits claiming damages from oil companies over local impacts from global climate change.
City governments in California, Colorado, Illinois, Maryland, New Jersey, New York, Oregon, and South Carolina have done the same.
Sunoco and other energy companies want the lawsuits tossed, arguing that energy policy is set by Congress at the federal level, not municipal lawsuits under state and local laws. In 2011, Justice Ruth Bader Ginsburg penned an 8-0 U.S. Supreme Court decision saying Congress retains the power to regulate, and the courts are not free to hear public nuisance claims under a general common-law theory.
But rather than tossing Honolulu’s case earlier this month, the Supreme Court asked the Biden administration to weigh in on the issue.
“It’s very obvious they want to do more on climate change and so this is an end-around for them to try and make climate policy in a way that they can’t or in ways that could potentially harm them,” Kenny Stein, vice president of policy at the Institute for Energy Research (IER) told InsideSources.com. “If they really think oil companies are these big bad evils that are costing so much money, well, they should have a carbon tax or have a massive increase in their gas tax. But of course, there’s political ramifications to that because voters would see them raising taxes.”
While energy companies might have preferred to see the case killed, legal sources say the court’s deliberate approach could be a sign the justices are seriously considering the petitioners’ issues and they are treating this like a high-profile case.
“It is important for the U.S. Supreme Court to grant review,” Theodore J. Boutrous Jr. of Gibson, Dunn and Crutcher, counsel for Chevron Corporation, said in response to the court’s request to the Biden administration.
“The Hawaii Supreme Court’s decision flatly contradicts U.S. Supreme Court precedent and federal circuit court decisions, including the Second Circuit which held in dismissing New York City’s similar lawsuit, ‘such a sprawling case is simply beyond the limits of state law.’ These meritless state and local lawsuits violate the federal constitution and interfere with federal energy policy.”
The U.S. Supreme Court has dismissed similar claims by states in federal courts.
Environmental groups, however, say Honolulu is in the right. They say the Clean Air Act permits states to regulate emissions inside their borders. Meanwhile, Hawaii does not believe it is possible to determine the source of emissions, therefore companies should avoid potential liability by stopping the production and sale of oil and gas products everywhere. Hawaii’s Supreme Court agreed.
“Lawsuits like Honolulu’s are not seeking to solve climate change or regulate emissions, these plaintiffs simply want Big Oil to stop lying and pay their fair share of the damages they know they’ve caused,” Alyssa Johl with the Center for Climate Integrity said in a statement. “The Solicitor General should make clear that federal laws do not preempt the ability of communities to hold companies accountable for their deceptive claims under state law.”
The problematic debate isn’t over climate change or energy policy, industry sources say. It’s the potential chaos of having local courts with their own state and local laws trying to set policy from the bench, and businesses shuttling from courtroom to courtroom.
And it’s not just fossil fuels and greenhouse gases. Democratic-run jurisdictions are using a similar lawfare tactic against drug companies, gun manufacturers, and social media companies, hoping to hold them accountable for what they say are the negative local impacts of their products.
“A decision from the land’s highest court is necessary for clarity on whether claims seeking relief for climate change can proceed in state courts,” said Craig Stevens with Grow America’s Infrastructure Now (GAIN).
“At a time when Americans are already dealing with high inflation and geopolitical unrest, energy companies are striving to provide consumers with affordable, reliable energy. Agenda-driven lawsuits create uncertainty for the industry and ultimately harm American consumers.”
