And a mostly vindictive one.

NRPLUS MEMBER ARTICLE F or as long as the Constitution has stood as a stumbling block to them, would-be tyrants have been searching for creative end runs around it. The latest example of such an evasion is in climate policy. Aided by left-wing state governments and litigators, progressive activists are attempting to circumvent the democratic process by suing oil and gas into submission, rather than enacting their policy goals via legislation.

A pending court case, Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, takes this issue head on. The Supreme Court has yet to officially agree to hear the case, but the justices have asked the Biden administration’s solicitor general to provide her opinion, signaling that the Court is seriously considering it. The basic issue of Suncor v. Boulder is one of jurisdiction — i.e., whether the preponderance of frivolous lawsuits against oil companies alleging “climate-related harms,” which now number well over a thousand, that have been filed by blue-state government attorneys should be heard in state or federal courts. State courts, in these heavily Democratic jurisdictions, are much more likely to be sympathetic to the plaintiffs; federal courts, which have a more conservative skew, are more open to ruling in the oil companies’ favor.

The appeal to the Supreme Court comes after last year’s Tenth Circuit ruling, written by an Obama appointee, that gave the Left the home-game advantage by placing Suncor v. Boulder back in the hands of Colorado state courts, holding that the issues it deals with are not within federal jurisdiction. The reaction that the mayor of Boulder had to the ruling was a telling indication of what this is really all about — in a statement, he wrote: “It’s time we make those responsible pay.”

This is objectionable for both legal and practical reasons. On the former, it’s worth noting that even hard-left European courts have thrown out similar cases on substantive grounds, holding that the plaintiffs who alleged “climate harms” were not uniquely victimized by oil and gas companies and thus lacked standing. On the specific jurisprudential question, a 2021 opinion by the Second Circuit Court of Appeals, in City of New York v. Chevron Corporation, explains that “federal common law functions much like legal duct tape — it is a ‘necessary expedient’ that permits federal courts to address issues of national concern until Congress provides a more permanent solution.” In other words, greenhouse-gas emissions — an issue of national and ultimately global concern — are within the purview of federal, rather than state, courts. Efforts to effectively legislate the issue from the benches of state jurisdictions are inappropriate for confronting the question. The Second Circuit Court’s opinion continues:

Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions. It is precisely because fossil fuels emit greenhouse gases — which collectively “exacerbate global warming” — that the City is seeking damages. . . . Put differently, the City’s complaint whipsaws between disavowing any intent to address emissions and identifying such emissions as the singular source of the City’s harm. But the City cannot have it both ways.

Stripped to its essence, then, the question before us is whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no.

It would be bad enough if these lawsuits were an attempt to achieve legislative goals via state-court rulings; in practice, they are less a substantive effort to legislate from the bench than they are an act of targeted harassment against a disfavored set of institutions.

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“Even if they were successful, most such suits would do little to limit emissions going forward,” Jeremy Carl noted in these pages in 2019. The dubious premise of the lawsuits notwithstanding, Carl wrote, “pursuing them is simply not the most productive approach to actually moving Americans toward a politically durable climate-policy solution.” Given that across-the-board victories for lawsuits of this nature would have little-to-no material effect on greenhouse-gas emissions, it’s painfully clear that the intent is punitive rather than ameliorative. In layman’s terms, it’s not about solving climate change; it’s about hurting the bad guys. As Carl wrote, blue-state litigators are “using climate change not just as an environmental-policy issue, but as a way to right all their perceived societal wrongs.”

One need not dismiss the necessity of climate action to recognize that this is not the appropriate way to conduct it. (I happen to be of the opinion that climate change is a serious issue, and have written about how conservatives should approach it.) Andrew Ketterer, the former Maine attorney general, made this point in a recent op-ed, titled “Keep Climate Litigation in Federal Court.” Ketterer, a Democrat, maintained that “addressing the root causes of climate change is one of the most urgent, consequential challenges facing our country,” and that “we should be doubling down on solutions that can reduce carbon emissions.” But the state and local governments employing the litigatory approach “are doing the opposite: They are pursuing lawsuits against energy companies that even the governments admit will do nothing to reduce emissions. . . . These lawsuits miss the mark by offering no real solutions, just blame.” Ketterer also noted that even the Obama administration hewed to a similar view:

In January 2011, the Obama administration, through its acting Solicitor General Neal Katyal, urged the Supreme Court in American Electric Power v. Connecticut to overrule a decision by the Second Circuit that would have allowed states, environmental groups and New York City to sue several utility companies regarding climate change.

In that brief, the federal government explained that the energy policy issues that underlie this litigation require “political or regulatory — not judicial — resolution.” America’s climate policy cannot be decided through an “open-ended series of common-law suits in far-flung district courts.” Ultimately, the Supreme Court decided the case in favor of the petitioner.

Climate skeptics and climate hawks alike should agree that the lawfare approach to climate policy, and its enablers on both state and federal courts, are in the wrong. This is an important issue, but in our form of government, important issues are hashed out via democratic deliberation — not through a scattered, ultimately ineffective series of lawsuits and rulings designed to inflict harm on opponents rather than solve problems. The Supreme Court has an opportunity to make that clear. It should take it.