From CFACT

By Bonner Cohen, Ph. D

As the United States abandons the false promise of green energy at a pace few thought likely only a short time ago, a slew of lawsuits against fossil fuel producers filed in state courts threatens to hobble the nation’s drive toward global energy dominance.

Alleging threats to public health posed by human-induced climate change, plaintiffs from various jurisdictions claim that fossil fuel companies cause local harm under state tort law. However, applying state tort law to global greenhouse gas emissions would confer extraterritorial jurisdiction to states and counter the Clean Air Act’s federal structure of regulating pollutants.

A 2018 lawsuit by Boulder County, Colorado, seeking climate-related damages from Exxon Mobil and Suncor Energy alleged that the companies’ fossil fuel activities exacerbate climate change and cause local harm under state tort laws. In a 5-2 decision, the Colorado Supreme Court rejected the companies’ federal preemption defense and allowed the case to go forward in state court.

The implications of the developments in Colorado for the nation’s energy supply and national security have not been lost on the Washington Legal Foundation. “Allowing state courts to regulate global climate change through tort suits threatens national economic stability and federal authority,” said a statement by Cory Andrews, the foundation’s general counsel and vice president of litigation.

The Washington Legal Foundation argues that “climate-change tort claims implicate uniquely federal interests, requiring a uniform federal rule of decision rather than a patchwork of state rulings.” It added: “The proliferation of such suits could impose crippling liabilities on the energy sector, disrupt interstate federalism, and undermine national economic and security interest, necessitating Supreme Court intervention to halt this disastrous trend.”

Joined by the Atlantic Legal Foundation, the Pelican Institute, the Frontier Institute, the Independence Institute, the Manhattan Institute and the Federation of Defense & Corporate Counsel, the Washington Legal Foundation is petitioning the Supreme Court to do just that: intervene before the Colorado case (and similar actions undertaken by state and local governments) get out of hand.

“And if they succeed,” the Washington Legal Foundation pointed out in a brief filed this month with the Supreme Court, “other types of businesses and even individuals allegedly harmed by climate change will be next in line to sue the same group of fossil-fuel defendants — assuming the industry survives the onslaught by a multitude of state and local governments.”

Fortunately, tort-law-driven litigation targeting the energy sector stands on shaky legal ground. “Damages suits that attempt to isolate a single type of contributor to, or cause of, global climate change … conflict with two key scientific facts: (i) Climate change has no boundaries and (ii) there are countless sources of [greenhouse gas] emissions both in the United States and abroad,” the brief says. “This is why a city’s, a county’s, or other political subdivision’s claims for the alleged local effects of climate change, no matter how mundanely labeled or artfully drafted, necessarily implicate uniquely federal interests that preclude state-law climate-change tort suits.”

Though they are wrapped in the garb of protecting the public from the supposed horrors of climate change, these tort lawsuits are little more than elaborate shakedowns of a successful industry by cash-strapped, high-tax state and local governments. In December, New York Governor Kathy Hochul signed a bill allowing the state to fine oil and natural gas companies a total of $75 billion over the next 25 years for their alleged roles in inflicting climate-related damage on the state’s infrastructure.

New York’s Climate Change Superfund Act is modeled after the “polluter pays” principle enshrined in the original 1980 Superfund Act, which held that parties responsible for contributing to toxic pollution sites would be liable for cleanup. However, treating colorless, odorless carbon dioxide emissions from the production and combustion of fossil fuels the same way as old-style industrial contamination distorts carbon dioxide’s vital role in enhancing plant growth, including crops grown on farmland.

Indeed, the demonization of carbon dioxide lies at the heart of climate policies, whose negative consequences are being felt around the world. In Europe, for example, “net-zero” policies, designed to achieve zero carbon dioxide emissions by mid-century, are increasingly seen as a folly that has brought about the continent’s self-imposed deindustrialization.

“Germans tolerated idiotic climate policies for years, right up until the moment net zero started to destroy the country’s prized auto industry,” Joseph Sternberg recently noted in The Wall Street Journal. “Now Germans are losing interest in climate in a hurry.”

In challenging the Obama administration’s 2009 endangerment finding that opened the floodgates to federal climate regulations, Lee Zeldin’s Environmental Protection Agency now argues it has no authority under the Clean Air Act to regulate carbon dioxide as a pollutant. The Clean Air Act, not state courts applying tort law, governs nationwide emissions into the air.

The Supreme Court can avert chaos in the judicial system and destruction to the American economy by quashing, once and for all, the power grab of overreaching state courts.

This article originally appeared in the Washington Times