MOMENTUM BUILDS FOR SCOTUS TO TAKE UP CLIMATE CASE AS THE CLOCK TICKS
“ Energy companies shot back at the Biden administration’s decision to side with cities and states suing the industry over climate change last week….”
MOMENTUM BUILDS FOR SCOTUS TO TAKE UP CLIMATE CASE AS THE CLOCK TICKS
APRIL 10, 2023 | NICOLE JACOBS
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Energy companies shot back at the Biden administration’s decision to side with cities and states suing the industry over climate change last week, calling the federal government’s 180 move to support state jurisdiction “shot through with flaws” and driven by “a desire to signal virtue to political bedfellows,” as E&E News reports.
The administration’s Solicitor General, at the order of the Supreme Court, weighed in on the jurisdictional issue in March, arguing that the U.S. Court of Appeals for the 10th Circuit got it right when it affirmed remand of a case brought by the City and County of Boulder and the County of San Miguel, Colorado back to state court.
In doing so, the Department of Justice—in the words of the companies—“casually junked” the previous administration’s position, which backed federal jurisdiction the last timethese cases were before SCOTUS.
Importantly, the Boulder petition was distributed for the justices’ April 21 conference, meaning that a decision on whether the high court will review this case may be just weeks away.
Political Motivations
The Justice Department’s dramatic shift on the jurisdictional issue appears to be a reaction to changing political pressures, rather than the law itself, as the companies pointed out in a blistering supplemental brief:
“Perhaps the current administration genuinely does have a different view on questions of federal jurisdiction than the last one. But given the federal government’s institutional interest in taking a broad view of federal jurisdiction, it is hard to escape the conclusion that the change in position is being driven by the fact that the questions are arising in the context of climate-change lawsuits — and by a desire to signal virtue to political bedfellows who are behind these lawsuits.” (emphasis added)
“Given that apparent motivation,” the companies continued, “it is difficult to take anything the government says here at face value.”
As a reminder, these lawsuits have been politically-motivated since the get go. During a Boulder City Council study session two years ago, a top city official revealed that the their climate lawsuit is a means of driving “larger systems-level change.” And in 2017, a lawyer supporting a different case told VICE News that “[the litigation’s] got the potential really to bring down the fossil fuel companies.”
Notably, Colorado’s elected officials and others have been happy to back away from the Boulder lawsuit. Governor Jared Polis, Attorney General Phil Weiser, and former Governor John Hickenlooper – all Democrats – have declined to endorse the case.
Heightened Stakes
The companies’ supplemental brief builds on the growing momentum for the Supreme Court to grant review of the Boulder petition and resolve whether the 20+ similar climate lawsuits around the country should be heard in state or federal court.
Determining the proper home for these lawsuits is crucial, as they directly implicate federal and global policy questions related to climate change. The plaintiffs have fought to keep these cases in state court, believing they have a better shot at success in those venues. But should they ultimately be successful, it could result in what has been called a “patchwork of fifty different answers to the same fundamental global issue.”
The companies called out the threat of that that very real possibility in their brief:
“It is preposterous to suggest that the fate of these cases—with their potentially enormous consequences for an entire sector of the global economy— should be left to handpicked state courts…”
The brief also highlighted a recent concurring opinion from the 8th Circuit that made a compelling argument as to why the Supreme Court needs to get involved to ensure these lawsuits should proceed in federal court. Judge Davis Stras characterized the Minnesota suit as an attempt to “set national energy policy through […] consumer-protection laws,” rather than through regulation or legislation passed by Congress.
Bottom line: These lawsuits, if successful, would have a significant impact on everything from interstate commerce to national security, underscoring just how high the stakes are in the Boulder case. And the clock is ticking: the petition was distributed for the Friday, April 21 conference, which means that the Supreme Court’s decision on whether it will take up the case could come as soon as the following Monday.