Supreme Court Should Crush The ‘Climate Nuisance’ Legal Crusade

NGOs are trying to bankrupt the oil industry. Five sane judges could stop them.

A cadre of ethically barren NGOs and tort lawyers is rigging America’s legal system and advancing its outlandish climate agenda through state courts. Fueled by lavish funding from progressive billionaires, in the name of their foundations, these activists are colluding with state and local governments to sue oil companies for “climate damages”; propagandizing judges who preside over the cases; and paying news outlets to bolster their legal crusade.

It’s a shameless ploy to end-run the federal regulatory apparatus and forcefully eliminate fossil fuels. If it succeeds, consumers will be left freezing in the dark. Fortunately, it may not succeed. The conservative Supreme Court could quash this decades-long green conspiracy if it’s willing to reject the activists’ comically dishonest arguments and halt their abuse of the legal system.

Recap: Tobacconizing the energy sector

A growing number of states have taken legal action against energy companies, alleging that their contributions to climate change constitute a “public nuisance” and warrant absurd compensation—many billions of dollars in damages to mitigate the alleged effects of global warming. We outlined the contours of this litigation in a 2023 analysis of one case brought by an Oregon county against several major oil producers:

“The truth is that politically connected trial lawyers and environmental groups, with the generous backing of billionaires like Mike Bloomberg, are recruiting these communities as clients and filing suit in ideologically sympathetic state courts.

In some instances, they’re even placing staff in the offices of state attorneys general. These ‘legal fellows’ are then tasked with facilitating litigation against energy companies, an arrangement that is nothing short of corrupt. ‘State AGs for Rent,” The Wall Street Journal observed, as “Privately funded litigators wield state police power.’”

More deviously, the goal isn’t victory in individual suits. Indeed there has never been a successful climate nuisance case. Environmental lawyers would happily accept favorable judgements against “Big Oil,” but they aren’t banking on actually winning in court. If the tort lawyers thought they actually had a chance of winning, then firms like Sher Edling, leading many of the climate nuisance suits, would not be relying on $14 million in foundation donations to pay the rent.

Instead the goal of this legal strategy, as Firebreak editor David Zaruk has documented, is to entangle the energy sector in expensive, extended litigation in different jurisdictions that destroys its credibility and ultimately forces a bankruptcy-inducing settlement. Think of the anti-opioid litigation that brought Purdue Pharma to its knees—only much bigger, large enough to cripple the companies that keep everyone’s lights on. That’s how Michigan’s attorney general framed her case against the oil industry, a strategy we call the The La Jolla Tobacconization Playbook: demonize every industry you don’t like as the new “Big Tobacco.” It’s as brilliant as it is malevolent.

Cue the Supreme Court

But here’s where things get interesting. At least one attempt to tobacconize the oil industry in federal court has already failed, with one US district judge blasting the city of Oakland, California, for making the frivolous public nuisance argument so many plaintiffs are advancing in state court. In short, you can’t sue global companies for regional environmental impacts you can’t prove they caused.

The oil industry has asked the US Supreme Court to hear one such case originally filed in Hawaii, arguing that the state is trying to regulate carbon emissions through the back door. This suit and others like it effectively allow progressive jurisdictions to “dictate the future of the American energy industry,” as 19 attorneys general explained in reference to a related case also appealed to the Court.

The primary legal hurdle for the climate nuisance brigade is the well-established doctrine of federal preemption. Simply put, when federal and state laws conflict, federal law takes precedence, effectively preempting state action. In the case of climate change, The US Supreme Court has ruled that the Clean Air Act (CAA) grants the EPA exclusive authority to regulate greenhouse gas emissions; therefore, state-level efforts to punish energy companies for everybody’s emissions are legally dubious. By the way, the firms facing this litigation are responsible for only 15 percent of global greenhouse emissions.

The Supreme Court in October asked the Biden Department of Justice to weigh in on whether it should hear the Hawaii case. Predictably, solicitor general Elizabeth Prelogar parroted the plaintiffs, asserting that the nuisance suits aren’t an attempt to regulate emissions. Instead they’re meant to hold oil producers accountable because they “engaged in deceptive marketing by concealing and misrepresenting the dangers of using their fossil-fuel products,” she concluded.

It’s a superficially clever dodge, but that’s really all it is. As the 19 attorneys general explained in their brief to the Supreme Court, the litigating states clearly view climate change as a global phenomenon and their litigation is a blatant attempt to restrict fossil fuel use on an international scale:

“Citing fears of a climate catastrophe, [the states suing oil companies] seek massive penalties, disgorgement, and injunctive relief against energy producers based on out-of-state conduct with out-of-state effects. On their view, a small gas station in rural Alabama could owe damages to the people of Minnesota simply for selling a gallon of gas.”

If Defendant States are right about the substance and reach of state law, their actions imperil access to affordable energy everywhere and inculcate every State and indeed every person on the planet.”

In other words, there is a robust argument that state lawsuits against energy companies violate the Constitution's Commerce Clause, which grants Congress the power to regulate interstate commerce. The federal government is well within its authority to prevent one state from imposing its policy preferences on another. The Supreme Court has long recognized that this power extends to activities that have a substantial effect on interstate commerce—such as greenhouse gas emissions.

A cynical ploy

When they’re not making obtuse arguments in legal briefs, the activists behind this litigation insist that climate change is a global issue that requires a coordinated, international response. “...[A]ll the nations in the world are saying climate change is real. It's serious and it's a threat to the prosperity of mankind,” declares Naomi Oreskes, the agitator and tort consultant behind the tobacconization playbook. Oreskes was forced to reveal, under oath, that she had been paid by at least three law firms suing oil companies.

Going after energy firms at the state level, as Oreskes and her allies are doing, will divert industry resources away from producing power (which everyone needs) to battling lawsuits and fighting the conspiracy theory that they’re solely to blame for global warming. As climate change is a very complex issue with thousands of influencing factors, this would be an impossible task for any litigator, regardless of their showman capacity or penchant for simplification.

And that’s the point. This tort charade is nothing more than an anti-capitalist gambit meant to punish industry for offending the environmental movement’s ideological priors. Legal arguments aside, that deep-seated cynicism is reason enough for the Supreme Court to extinguish the climate nuisance crusade.