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.
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.
Brigham McCown is a senior fellow and director of the Initiative on American Energy Security at Hudson Institute and a clinical professor of law and policy at Miami University/InsideSources