National lawmakers, companies and environmental groups are now engaging in important discussions over how the United States, and ultimately the planet, can reach our climate goals. The most important task is figuring out how to develop the technologies we need to source and use energy much more efficiently so the world's energy use will have a net zero impact on the climate. It is a mammoth undertaking requiring a collaborative "all in" approach.
Some people, though, are stuck in the past. Rather than join this solution-based effort, they are waging a 20-year old campaign to blame climate change on energy manufacturers. Scapegoating energy companies may make for good politics in some circles, but climate change is no more their fault than ours. We need energy to turn on our lights, fuel our cars, power our workplaces and produce goods. The challenge is figuring how to sustain modern life and the climate.
One of the problems with this litigation approach is that it will hinder the ability of our national leaders to lead on climate. As the architects of the litigation campaign have said, they are trying to go state-by-state to get local judges to circumvent Congress and "raise the price" of energy. Their ultimate goal is for judges to impose a back-door penalty on all of our energy use. In their words, "holding oil companies responsible is to hold oil consumers responsible."
Fortunately, federal courts have seen this litigation for what it is: an undemocratic attempt at regulating through the courts. The first of these lawsuits came in 2004 when New York City and several states sued utility companies out of frustration that not enough was being done on climate. In 2011, the U.S. Supreme Court dismissed that suit. Justice Ruth Bader Ginsburg, writing for the unanimous Court, explained that Congress and the EPA are the places to make energy policy.
The local governments, rather than accept this ruling, repackaged their lawsuits under state law. Since 2017, two dozen of these suits have been filed in state courts around the country. They want state judges to do what the Supreme Court would not allow federal judges to do: set national energy policy. This whole ploy relies on avoiding federal court at all costs.
This year, the U.S. Supreme Court heard an appeal in the case brought by the city of Baltimore. In May, the Court ruled for the energy companies on a procedural issue, directing the federal appellate courts to decide whether these cases can even go to state court. As groups like the National Association of Manufacturers explained, figuring out America's energy policy for how to effectively deal with global climate change requires national decision-making.
The Supreme Court's ruling came a month after one of the federal appellate courts dismissed New York City's climate lawsuit, which was already in federal court. The appellate court reiterated that these lawsuits present "a uniquely international problem of national concern. It is therefore not well-suited to the application of state law."
So, naturally, the city turned around and filed another climate lawsuit—this time in state court.
It is time to end these cases once-and-for-all. The federal government should not have its hands tied by these state lawsuits. The stakes are too high. Balancing America's need for affordable, reliable energy, along with climate action, are national and legislative in nature. If Americans are to pay more for energy, Congress should make the decision after weighing the impacts of price hikes on the American people and businesses—courts should not do so in a vacuum.
At this point, state and local governments should focus their attention on working with—not against—national lawmakers, companies and environmental groups. Only by coming together can we develop and deploy technologies that could get us to net zero emissions. Innovation is the only answer to climate change. It is time to focus on real solutions, not the political blame game.
Phil Goldberg is special counsel to the Manufacturers' Accountability Project and the office managing partner of Shook, Hardy & Bacon, LLP in Washington, D.C.
The views expressed in this article are the writer's own.
