Local Courts Should See Right Through the Climate Litigation Charade

Climate change has become the latest opportunity for abuse of the legal system . For many decades, liberals have turned to the courts when the democratic policymaking process has posed obstacles to their grandiose plans. Now, left-leaning cities and counties want to distort tort law, our nation’s basic system for resolving accidents and harms, to seek outlandish damages from energy companies for the alleged harms of global warming.

In the latest example, Multnomah County, Oregon, sued energy companies in June for $50 billion for their alleged contribution to the “2021 Pacific Northwest Heat Dome.” Just last month, four Democratic senators called on the Department of Justice to follow suit, literally, and pursue energy companies for misleading the public about climate change.

Led by New York and San Francisco (of course), liberal cities and counties have invented lawsuits against every energy company imaginable, from major producers to refiners and gas sellers, for their role in creating climate change. Joined by Baltimore, San Francisco, Honolulu, Rhode Island, Oakland, California, San Mateo, California, and Boulder, Colorado, among others, public officials in these communities suddenly discovered around 2017 that global warming constituted a “public nuisance” that harmed their residents and justified financial penalties.

These cities claim that the energy companies have caused broad injury through the “production and promotion of massive quantities of fossil fuels.” These businesses allegedly have triggered a “global warming-induced sea level rise,” followed by flooding, erosion, and harm to municipal infrastructure and water systems. These cities also demand that the energy companies fund a “climate change adaptation program” to build sea walls, raise the elevation of buildings, and construct “such other infrastructure as is necessary.”

These lawsuits may provide a welcome political distraction for liberal mayors and lawmakers, who have presided over the rising crime, stubborn homelessness, and failing schools that are ruining our inner cities. But they’re not serious cases, and no court should treat them as such.

Energy companies receive licenses from the federal government to extract and sell oil and gas. National approval of their operations should dispel the notion that they should pay damages or that the damages would have any real effect on global warming.

These lawsuits also plainly misuse states’ traditional control over tort law to control conduct beyond their borders. States have the right to regulate the harms that occur on their territory, such as pollution or accidents. But the problem is that global warming does not take effect primarily within any single state. Other countries produce roughly 85% of the world’s greenhouse gas emissions. And as the Supreme Court unanimously observed in the 2011 case AEP v. Connecticut, emissions do not remain local but quickly disperse and commingle in the atmosphere. “[E]missions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China,” it said. China alone accounts for about one-third of all greenhouse gas emissions .

Moreover, blaming fossil fuels for climate change, which might then affect city budgets, amounts to the type of extraterritorial regulation forbidden by the Constitution. Under the “dormant” Commerce Clause, the Supreme Court has long struck down state laws that advance economic protectionism under the guise of health and safety or environmental goals. States also cannot impose regulations on imports that effectively seek to control activity that primarily takes place beyond their borders.

The Supreme Court, however, has defended a state’s right to control health and safety even against a dormant Commerce Clause challenge. Just this summer, for example, the court allowed California to regulate the raising of pigs sold in California, even though more than 90% of the livestock came from outside of California.

But even with the court’s revival of federalism in this case, states do not have the right to control conduct beyond their territory. A state cannot seek to impose its own views of economic or environmental policy on the rest of the nation. Limiting energy use or replacing fossil fuels with renewable sources should be up to our elected representatives in Congress. The U.S. legislature, not California, Texas, or Florida, has the constitutional power “to regulate commerce with foreign nations, and among the several states.”

These principles show that the city and county lawsuits should fail. These jurisdictions even have difficulty identifying the discrete benefits of their claims within their territories. The lawsuits are based on a faulty theory of public nuisance that holds only select energy companies responsible for the global rise in temperatures over many decades without assigning their share of responsibility or considering other sources of carbon dioxide, such as China and India or manufacturing and agriculture.

Finally, these cities and counties cannot show that their lawsuits would have any effect on rising sea levels and their harms. The energy companies might produce CO2 in the single digits as a share of all human emissions; even if they paid massive damages, other countries and industries would continue to emit greenhouse gases undeterred.

Blue cities and states should not have the power to use the law to decide the nation’s balance of energy between renewables, nuclear, and fossil fuels. Those “major questions,” the court reminded us in striking down the Biden administration’s student debt cancellation program this summer, remain for Congress to make.