Climate lawsuits might play well in the press, but they make for lousy policy regarding everything else. Since 2017, cities and states across the United States have filed more than two dozen lawsuits against major energy companies, alleging they sold oil and gas to Americans despite the known environmental effects of fossil fuel consumption.
An untold implication of these lawsuits is the potential for jeopardizing U.S. national security. Energy security is national security, and one needs only to look at Europe to see the disastrous consequences of ideologically driven policy decisions that have devastated parts of the economy despite some trying to downplay the significance.
After food, fuel represents the greatest operational sustainment demand for the military and national security. As a result, the Department of Defense is by far the largest energy consumer in the United States and one of the largest electricity consumers in the world. Unlike oil-producing countries like Saudi Arabia, the U.S. relies on private companies rather than state-owned entities to fuel military operations. Climate lawsuits threaten our military’s ability to obtain the oil and gas required to protect the country.
The lawsuits cast plenty of blame and punishment on the climate front, but even the plaintiffs acknowledge they will do little to curb emissions or mitigate climate change. Racing to the courthouse to file suits over a purely political topic merely sidesteps actual policy and legislative initiatives and, with them, the chance to make a meaningful, bipartisan change on climate issues.
The law is not typically fond of these types of suits because they attempt to circumvent the very levers of democracy in place to deal with these issues. Moreover, seeking to hold energy companies liable in state court for operations related to their work for the federal government makes for a tricky legal situation. Congress generally prohibited these actions in the Federal Officer Removal Statute of 1948. That statute bars state and local lawsuits against the federal government and companies or contractors doing business with the federal government if certain conditions are met.
The Supreme Court reinforced the importance of the Federal Officer Removal Statute in 2006, noting that any ability of a state to impose state law liability and judgment on the federal government and those private parties acting on its behalf would interfere with government operations and encroach on federal jurisdiction.
Yet, that is the very aim of this litigation. As the Manufacturers’ Accountability Project has detailed, this litigation was creative — and shortsightedly — packaged under state law to avoid federal scrutiny. In 2011, the Supreme Court rejected a climate case against utility companies; in 2021, the U.S. Court of Appeals for 2nd Circuit dismissed one of the current climate suits against energy producers, saying “such a sprawling case is simply beyond the limits of state law.”
Objection to these lawsuits being heard in state courts seems to be largely bipartisan, with two retired chairmen from the Joint Chiefs of Staf weighing in. Adm. Michael Mullen and Gen. Richard Myers have filed briefs urging that the lawsuits be heard in federal court since the federal government takes an active role in oil and gas production for military purposes. Maine’s former Democratic attorney general Andrew Ketterer also published an op-ed last year opposing these litigation tactics and pointed out the illogical nature of these cases proceeding in state court, noting “climate change goes well beyond the borders of individual states.”
One of the lawsuits — Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County — has been appealed to the Supreme Court, and the Biden administration offered its opinion last month. Rather than recognizing the federal nature of this issue and balancing climate change priorities and mitigating national security risks, the U.S. solicitor general urged the Supreme Court to keep the case in Colorado court rather than federal courts. This recommendation undermines the rights of the federal government’s own contractors to have lawsuits heard against them heard in federal court.
Ultimately, this litigation will have no effect on climate change. While the public debate concerning our future energy mix is important, the judiciary remains the wrong forum for political debate. Instead, those who favor pushing a quicker transition would do well to make the case to elected representatives.
