Climate change, a challenge of both national and international importance, must be addressed by Congress through federal laws rather than via tort claims brought against energy producers by state and local governments. Some jurisdictions, with support from the Biden administration, have adopted this misguided approach, alleging that these companies are responsible for damages related to climate change. However, the resources spent on these lawsuits might be better employed crafting comprehensive solutions to this global crisis.
Whether federal law precludes the application of state law to emissions-related tort claims remains a pressing question. This issue comes to the fore in the pending cert petition filed by energy producers in the case of Sunoco LP v. City and County of Honolulu. The defendants urge the Supreme Court to review this crucial legal matter.
The Supreme Court should conduct this review for two main reasons. First, tracing the responsibility for damages to separate parties is a complex process. Additionally, existing federal law—in particular, the Clean Air Act—precludes these sort of diagnostic lawsuits. As climate change is a diffuse global phenomenon, the burden of its effects in a specific locale cannot be squarely placed on a single industry, let alone on a single company.
The Clean Air Act extensively regulates interstate emissions while the Clean Water Act oversees interstate water pollution. Both of these statutes have already played significant roles in affirming the federal government’s authority over interstate pollution disputes. The 1987 case involving the Clean Water Act, Int’l Paper Co. v. Ouellette, serves as a precedent as it concluded that federal law preempts state damages suits for interstate water pollution.
In recent times, the Superior Court of Delaware dismissed major claims in Delaware v. BP America, Inc. on the grounds that the claims were preempted by the CAA. The US Court of Appeals for the Seventh Circuit also reached a similar conclusion for Illinois v. City of Milwaukee, Wis. following amendments to the Clean Water Act.
Instead of engaging in lengthy and expensive lawsuits, a more effective approach involves collaboration with Congress to drive investments into renewable energy and develop low- or zero-carbon solutions. The Department of Energy exemplified this strategy in 2019 by announcing $128 million in dozens of projects to advance solar technologies and reduce costs.
These kinds of initiatives represent practical solutions to climate change. Pursuing mass litigation against oil and gas producers seems more like an effort to penalize these industries for alleged damages, rather than a strategy to overcome the climate crisis. Congress, therefore, should proactively promote realistic legislative solutions to directly address climate change while the Supreme Court, in the meantime, should deter counterproductive state-level litigation.
For more details about the subject, you can consult the original article, written by Theodore “Ted” Garrish, a former general counsel and assistant secretary at the Department of Energy.