The District of Columbia has joined a growing trend of progressive states, cities and municipalities across the country litigating the alleged impacts of global carbon emissions in state courts.
Bottom line: The lawsuits seek to extract payment from America’s energy producers purportedly to offset often amorphous climate adaptation programs — but in many cases more likely just to offset debts from poorly managed budgets.
On Thursday, March 20, and after years of procedural wrangling, the District of Columbia Superior Court heard arguments from energy producers regarding why it should dismiss the District’s meritless lawsuit — which names Exxon Mobil, BP, Shell Oil and Chevron among its defendants.
The plaintiffs in the lawsuit, led by San Francisco-based law firm Sher Edling, allege that the energy industry has caused global warming, resulting in rising sea levels, flooding and “longer-lasting and more severe storms.”
The suit also alleges that infrastructure damage either has or may result at some future point. Further, it says the defendants defrauded consumers by promoting their environmentally sensitive innovations and by not sharing information about climate change.
In other words, the plaintiffs argue that but for the defendants’ lawful marketing efforts, consumers would not have bought or consumed fossil fuels.
Around the country, energy companies are litigating approximately thirty such suits. This “flood the zone” litigation strategy is not about advancing claims moored in traditional or accepted standards for liability. It is about leverage.
The cases are designed to pressure the defendants to settle with terms requiring fundamental changes to industry practices — such as bans on drilling or requirements to subsidize less reliable wind and solar power — as well as damages awards the plaintiffs will use for anything from Green New Deal-type spending to backfilling steep municipal budget deficits.
The companies must successfully defend all of these baseless lawsuits; losing even a handful would be catastrophic to the energy sector. But that appears to be the top goal of Sher Edling and those who fund them.
While the law firm has yet to win any of the more than 25 such lawfare cases on a contingency basis, it can afford to keep going. That’s because its efforts are being underwritten to the tune of millions of dollars a year from climate activist organizations.
A Republican staff report from the Senate Committee on Commerce, Science and Transportation and the House Committee on Oversight and Accountability revealed that, in 2022, sources such as the Resources Legacy Fund, New Venture Fund and the Tides Foundation supported the firm’s efforts.
The novel litigation theories being advanced in these cases are riddled with legal problems. Chief among the flaws in the District of Columbia’s lawsuit, along with the over two dozen identical lawsuits, is the plaintiffs’ attempt to get state or D.C. courts to set national climate policy by way of judicial decree rather than careful legislation deliberation.
Courts are neither permitted nor suited to accomplish the careful balancing and policymaking involved. Thankfully, under the Constitution’s Supremacy Clause and the Clean Air Act, that authority is reserved for Congress. Thus, city, state and local law is preempted by federal law — it is void and unenforceable.
Time and time again, when state or federal courts have confronted the preemption issues, they have found these cases barred. Just last month, New Jersey Superior Court Judge Douglas Hurd dismissed a nearly identical case with prejudice, stating that “plaintiffs’ claims are preempted because federal common law governs this dispute.”
He added that “Fundamental principles of federalism in the United States Constitution are clear that state law cannot operate in areas of “uniquely federal interests,” and “such a uniquely federal area is interstate air pollution.”
The Sher Edling-managed case for San Francisco and Oakland was likewise dismissed in 2018 by U.S. District Judge William Alsup, a Clinton appointee. The Second U.S. Circuit Court of Appeals dismissed New York City’s climate change lawsuit in 2021 because “judicial caution and foreign policy concerns” suggest such claims should not proceed absent clear congressional direction.
The Second Circuit held that “To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”
Baltimore City Circuit Court Judge Videtta Brown dismissed that city’s case in July, noting that Congress never intended adjudication of climate suits in individual state courts..
By similarly finding preemption in the District of Columbia case and granting the recently heard motion to dismiss, the District of Columbia Superior Court can preserve the will of Congress expressed, and its sphere of authority exerted, in its Clean Air Act.
Suing energy companies has become a cottage industry for activists hoping to cripple America’s energy industry and trial lawyers chasing a get-rich-quick scheme. These are ridiculous attempts to assign a small number of energy producers sole responsibility for a complex worldwide concern and the alleged climate change damages associated with it.
But what ultimately matters most is that the law is not on their side. The D.C. Superior Court has a chance to once again make that clear.
Donald J. Kochan is a professor of law and executive director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School.
