More than a dozen major energy companies want the Supreme Court to review a decision out of Hawaii saying they can be sued by local governments for their contribution to damage done by global climate change.
Sunoco, leading a group of 15 energy companies, asked the justices to take up an October decision from the Hawaii Supreme Court that allowed the city and county of Honolulu to sue them in state court, saying changing climate patterns brought on in part by greenhouse gases have damaged property.
In a novel legal argument, Honolulu in a 2020 lawsuit alleged the companies violated state laws such as trespassing, public and private nuisance, failure to warn, negligence in warning and strict liability claims. Honolulu pointed to rising sea levels, flooding, beach loss and erosion among other environmental concerns — including “habitat loss of endemic species” — as the grounds for the suit.
But the companies point to the decision of another court — the 2nd U.S. Circuit Court of Appeals — that ruled the local climate suits are invalied because federal law trumps state law claims against the oil giants.
The energy companies argue it is imperative for the Supreme Count now to take up the challenge and settle the conflict.
The Hawaii case presents a “recurring question of extraordinary importance to the energy industry, which is facing dozens of lawsuits seeking billions of dollars in damages for the alleged effects of global climate change,” their petition to the high court read.
“In these cases, state and local governments are attempting to assert control over the nation’s energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with the policies and priorities of the federal government. That flouts this court’s precedents and basic principles of federalism, and the court should put a stop to it.”
Ted Boutrous, an attorney representing the fossil fuel companies, noted that the Second Circuit’s decision recognized that a similar lawsuit, which was filed by New York City, was “such a sprawling case” that it was “simply beyond the limits of state law.”
“Global climate change requires a coordinated international policy response, not local litigation attempting to hold energy companies liable for worldwide lawful and essential energy production,” Mr. Boutrous said. “State court litigation is not a constitutionally appropriate route through which to address energy policy and the national and international challenges of climate change.”
The industry’s high court appeal comes just days after 19 Republican state attorneys general called on the justices to block another spate of lawsuits from Democratic-controlled states and cities using the climate change argument to suit oil and gas producers in their jurisdictions. The unusual joint appeal specifically seeks to stop lawsuits brought by California, Connecticut, Minnesota, New Jersey and Rhode Island, according to the Associated Press.
“They do not have authority to dictate our national energy policy,” Alabama Attorney General Steve Marshall said in statement last week announcing the lawsuit. Connecticut’s Democraticstate Attorney General William Tong dismissed the appeal as “pure partisan political theater.”
Legal vs. illegal
Lawyers for Honolulu argue that their lawsuit is different from the New York City legal battle, which they say focused on the lawful conduct of fossil fuel companies and global climate change. Honolulu’s case, by contrast, focuses on the companies’ allegedly unlawful actions, such failing to warn affected jurisdictions of the potential damage of their activities.
The city urged the Supreme Court to hold off as the legal argument is “percolating” in multiple lower courts.
“The same defenses are in fact currently being adjudicated by courts in four different states. Rather than short-circuit the ordinary percolation process, this court should deny certiorari,” Honmolulu’s lawyers argued in their filing.
Lawyers for the city did not immediately respond to a request for comment for this story.
The justices will discuss the dispute during their private conference on June 6. It would take four justices to vote in favor of reviewing the Hawaii Supreme Court decision for oral arguments to be granted. Those would take place next term, which begins in October.
Mark Grady, a law professor at UCLA, said it appeared that Honolulu was trying to define the act of oil production as itself a nuisance that a local jurisdiction can regulate.
“How can that be? On the same theory, cattle ranching would be a ‘nuisance.’ How could the courts possibly assess what the optimal/economic allocation of carbon abatement would be among industries and firms. A risk would be that the oil companies would comply with this crazy legal theory and use it as an excuse to agree to restrict output and drive prices up to the cartel level to their benefit and to the detriment of consumers,” he said in an email to The Washington Times.
Dozens of state and local governments have filed lawsuits against fossil fuel giants in states across the country since 2017, alleging their production, marketing and sales have contributed to climate change causing injuries. In addition to New York City and Honolulu, the cities include Baltimore, San Francisco and Boulder, Colorado.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.