Even if they can’t intervene immediately to correct the errors of the Trump trial, justices can address the misuse of the courts in a crucial climate-change case.
Even if they can’t intervene immediately to correct the errors of the Trump trial, justices can address the misuse of the courts in a crucial climate-change case.
T here are many lessons to be drawn from Donald Trump’s conviction by a New York jury last week. One of them is the growing ability of state and local officials to misuse the legal system to interfere with the functions and responsibilities of the federal government. In Trump’s case, under the guise of the state’s police power to enforce criminal law, New York is interfering with the effectiveness of the presidency and the conduct of federal elections. Manhattan district attorney Alvin Bragg surely knows that his criminal charges, gossamer-thin though they are, will strike a blow against Trump’s political fortunes while appeals courts will take months, if not years, to correct the errors.
A broader example of this progressive abuse of federalism, perhaps just as harmful to the national interest, comes to the Supreme Court this week. The case, Sunoco v. City and County of Honolulu, involves not alleged misconduct by a presidential candidate but a problem of broader long-term significance: climate change. Honolulu and dozens of other progressive cities claim the right to sue industry for the harms that climate change brings about. The defendants have appealed for review to the Supreme Court, which will decide on June 6 whether to hear the case. Even if it cannot intervene immediately to correct the errors of the Trump trial, the Supreme Court can begin the work of stopping cities and states from misusing their legal systems as political weapons.
As in the recently concluded Trump case, Honolulu and other cities have constructed a complicated but tissue-thin legal claim to conceal a political agenda. These cities claim that energy companies bear responsibility for global warming and should contribute to the cities’ public treasuries by paying billions of dollars in damages (even though, at the same time, some of these cities have reassured the bond markets that climate change poses little threat to their infrastructure). Honolulu claims, for example, that energy companies have known that their “unrestricted production and use of fossil fuel products create greenhouse gas pollution that warms the planet and changes our climate.” These “impacts could be catastrophic,” including “global atmospheric and ocean warming, ocean acidification, melting polar ice caps and glaciers, more extreme and volatile weather, drought, and sea level rise.”
The Constitution, however, grants to the federal government authority over interstate economic activity. Article I, Section 8’s commerce clause would cover little if it could not extend to pollution that crosses state borders as a result of the industrial activity of large enterprises throughout the nation (if not the globe). This broad reading of federal power gave rise to our environmental laws, such as the Clean Air Act of 1963 and the Clean Water Act of 1972, not to mention the economic regulations of the New Deal. In Massachusetts v. EPA (2007), the Supreme Court even ordered the Environmental Protection Agency to start regulating greenhouse-gas emissions as pollutants, which the Obama and Biden administrations have done with gusto.
The EPA’s climate-change agenda, which has stalled in the courts, still hasn’t satisfied the environmental lobby. Instead, they turned to Democratic cities and states to sue energy companies directly for global warming. In American Electric Power v. Connecticut (2011), however, the Supreme Court made clear that federal law preempted state efforts to directly regulate interstate air pollution. States could not claim, Justice Ruth Bader Ginsburg concluded, that greenhouse-gas emissions had local effects that justified local regulation. Such air pollution obviously affects the nation as a whole. “Greenhouse gases once emitted become well mixed in the atmosphere,” the Court observed, also noting that “emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China.” Allowing states to regulate greenhouse gases obviously conflicted with the federal government’s authority under the commerce clause, and even risked sparking retaliation by other states with different energy policies. The Supreme Court preempted state lawsuits against the energy companies for their alleged contribution to climate change.
But as the Trump trial showed, progressives are nothing if not clever in conjuring new legal theories. With willing city councils dazzled by the promise of full city treasuries and the prospect of signaling climate virtue, plaintiffs’ lawyers have now concocted a new claim: that energy companies engaged in fraud by selling oil and gas without disclosing the climate effects. The Hawaii supreme court, for example, upheld Honolulu’s claim that the energy companies “knowingly concealed and misrepresented” the climate effects of their products and engaged in “disinformation campaigns” to raise doubts about global warming. The court allowed Honolulu to further claim that the failure to fully disclose those effects led to an increase in fuel consumption and greenhouse-gas emissions, and thus “caused property and infrastructure damage in Honolulu.” Dozens of cities and counties have jumped on this latest climate-change bandwagon in an effort to cripple the energy companies.
Hawaii hid its effort to interfere with the public interest — here, a unified national policy on energy and global warming — behind federalism. State law has governed fraud in commercial dealings since the Founding. The Constitution grants the federal government only specific, enumerated powers, with state law controlling everything else, such as contracts, torts, property, criminal justice, and family law, to name a few. During the New Deal and the Great Society, however, the federal government dramatically expanded its powers by means of the commerce clause and the taxing and spending powers to establish national regulation over the economy, the environment, and society in general. Conservatives on the Supreme Court have long favored restoring balance to the federal-state relationship and, under the Rehnquist and Roberts Courts, struck down several federal laws for exceeding congressional authority. Even as they demand adherence to global schemes to regulate greenhouse-gas emissions such as the Paris Accords, environmental activists seek to cloak their efforts in states’ rights.
The justices should not be so easily fooled. It seems obvious that these cities and states seek not to regulate local businesses and their effects but instead to impose large-scale damages on a national industry. They are not suing, for example, any other companies that use petroleum in their products or in provision of services — only the large energy producers such as Sunoco, Exxon, Shell, Chevron, BP, ConocoPhillips, and Marathon. If Honolulu were truly seeking damages from those who allegedly concealed the effects of fossil fuels, it should be dragging into court every user of plastic (including those who make cheap tourist souvenirs) and every user of gasoline (including tour-bus and fishing-charter operators). It would need to show that even more information about climate change, the science and policy of which remain subjects of debate, would actually change consumer decisions — which is doubtful, given the centrality of fossil fuels to the modern economy.
Instead, these cities and states seek to impose crushing damages on the backbone of the American economy. The importance of the energy industry cannot be overstated. In 2021, the industry employed 7.8 million Americans; in 2022, that number rose to 8.1 million. Americans last year spent $1.3 trillion on energy, which amounts to 5.7 percent of the gross domestic product. Spread across all 50 states are more than 11,000 utility-scale power plants that deliver electricity to the nation’s power grid. Imposing billions of dollars of damages would amount to a nationwide energy tax: Such a tax would make the economy smaller and consumers poorer, and has been rejected by every legislature that has considered it.
Furthermore, controlling energy has long constituted an important national-security goal that supports not only economic independence and stability but also U.S. diplomacy and military capabilities. If the Supreme Court were to allow these cases to proceed, states and localities could handicap an interstate industry critical to the nation’s economy and security. In fact, the foreign-policy implications of international climate-change accords pushed by activists are all the more reason to suppress these state climate-change lawsuits. Allowing cities and states to set their own climate-change policy, under the guise of protecting consumers, would interfere with Washington’s policies toward nations participating in these accords. The Supreme Court has preempted state interference in foreign policy for far less.
Our Constitution has preserved liberty by creating a specialized federal government that exists against the background of the states, which remain the primary regulators of much of daily life. It is because the Constitution properly centralizes control over matters that extend beyond the states — war, national security, foreign policy, and interstate commerce — that our nation has grown into the world’s greatest power while maintaining liberty at home. Conservatives have successfully slowed, if not halted, the expansion of the federal government into areas that properly are the domain of the states. With progressives trying today to use federalism to cloak their national political agenda, the Supreme Court must intervene in city and state climate-change lawsuits to ensure that what the Constitution made national, stays national.
Editor’s note: The writer co-authored an amicus brief with Richard Epstein that has been filed with the U.S. Supreme Court in the Honolulu case.