Biden’s DOJ argues state and local governments can continue suing oil and gas companies over interstate emissions, even though the issue crosses state lines.
The Department of Justice is urging the Supreme Court to avoid reviewing two climate-related, public nuisance lawsuits, thereby allowing states to regulate interstate emissions nationwide in violation of a long-standing rule that has guided the department for decades.
Traditionally, the DOJ upholds federal authority over state authority. But in this particular case, the Biden-era DOJ in its final weeks effectively says states can continue suing major oil and gas companies on an issue that crosses state lines.
The DOJ has historically “not been very fond of saying states get to do something across state boundaries,” O.H. Skinner, executive director of Alliance for Consumers, told National Review. “They’re not very fond of saying nationwide issues can be tackled by local governments because they’re normally very protective of federal agency power. Federal agencies solve national problems, states and local governments get to solve local problems.”
Solicitor general Elizabeth Prelogar filed a pair of briefs late Tuesday, imploring the Supreme Court to reject the two lawsuits. In the first, oil companies are appealing a Hawaii supreme court ruling that allowed Honolulu to sue them. The second pertains to a bid made by 19 Republican states to prevent five Democratic states from pursuing litigation similar to the one in Hawaii.
In the Hawaii lawsuit, the government of Honolulu accuses Sunoco, Exxon Mobil, BP, Chevron, and Shell of promoting false and misleading information about the dangers of climate change caused by burning large quantities of fossil fuels. In other words, Honolulu believes these companies are entirely responsible for climate change and therefore liable for undoing the environmental damage.
After Hawaii’s supreme court ruled against them in November 2023, the five fossil-fuel corporations asked the Supreme Court to review the decision. They argued Honolulu’s lawsuit sought to regulate gas emissions or interstate commerce, which are reserved for the federal government.
Prelogar, however, contended the Court lacks jurisdiction in reviewing the Hawaii supreme court’s “interlocutory decision, and even if it did, further review at this time would be unwarranted” while the companies continue bringing up constitutional arguments in lower courts.
In the other case, 19 Republican attorneys general seek to block lawsuits filed by California, Connecticut, Minnesota, New Jersey, and Rhode Island that blame Shell, BP, and other Big Oil companies for climate change. The coalition of GOP states filed this case directly to the Supreme Court in May.
The plaintiffs argue the Democratic states have no authority to regulate interstate emissions beyond their borders and that they’re trying to dictate U.S. energy policy.
Prelogar disagreed, writing “there is no merit to the contention that the federal common law of transboundary air pollution governs (and therefore precludes) the defendant states’ claims.”
The Supreme Court’s 6-3 conservative majority requested input from the solicitor general on the two cases in June and October, respectively.
If the justices choose to skip reviewing one or both of the cases like Prelogar wants, Skinner sees this outcome as a political move meant to benefit three left-wing constituencies — radical environmentalists, trial lawyers, and dark money groups.
“If the Supreme Court takes this case, the Trump Department of Justice would be the ones filing the actual briefs in the case,” he said. “So the Biden DOJ is frantically trying to bail out trial lawyer backers of the president, dark money people on the left, and the radical environmental crowd and do them a solid as the door hits them on the way out.”
In its consumer protection report, Alliance for Consumers details how left-wing trial lawyers — who backed President Joe Biden’s 2020 presidential bid — have used public-nuisance lawsuits to financially benefit from massive settlements and push a political agenda.
Public-nuisance suits target local problems that unreasonably interfere with the general public. The lawsuits filed against gas and oil companies fall under this legal category.
If a public-nuisance lawsuit over climate change proceeds because the issue is deemed a national problem, then trial lawyers can file public nuisance claims to regulate firearms, plastic water bottles, or gas-powered cars on a national scale.
“Public nuisance cases promise to provide a multi-billion dollar flow of money into trial lawyer bank accounts while serving as a left-wing tool to reshape American society,” Skinner said.
The briefs come as president-elect Donald Trump prepares to enter the White House for a second term and Republicans retake control of Congress next month. The filings represent the Biden administration’s last-ditch attempt to fulfill its promise of a Green New Deal that would affect national energy policy.
Skinner expects the Court will decide on whether they should intervene in January. Trump, whose second administration will likely upend climate litigation plaguing federal courts, takes office on January 20.
“Since taking office, the Biden administration and solicitor general Prelogar have repeatedly flipped positions and done legal somersaults to line up behind the interests of trial lawyers at the Supreme Court,” Skinner told NR. “These new filings just repeat that playbook.”