Legal experts: Supreme Court should decide energy policy framework over climate lawsuits

The state and local government officials argued that fossil fuel companies are liable under nuisance laws. Typically, state nuisance laws are used in disputes with neighbors where an individual may be conducting activities that lower the value of another individual’s property. Legal experts said state nuisance laws are inappropriate to address damages from climate change.

Michael Gerrard, a law professor at Columbia Law School, said there are more than two dozen lawsuits in states across the country against fossil fuel companies with similar arguments as Boulder County, Colorado.

West Virginia Solicitor General Michael Williams said this kind of litigation will cripple the energy industry in his state. He said litigation from other states attempting to regulate in West Virginia is alarming.

“This is really a debate about how those industries continue to function,” Williams said. “Especially as the science and the regulatory structure continues to evolve when it comes to issues like climate change.”

Williams said climate change activists have been attempting to use court litigation to implement a federal level energy policy that regulates emissions. He argued that the U.S. Supreme Court needed to address this before it was settled in a state court.

“Questions that touch on global energy markets and interstate commerce and foreign policy, those are decisions that really belong in the hands of Congress or at the very least at the federal level,” Williams said.

When the court agreed to take up the case, the justices asked whether it has authority under Article III of the Constitution to decide it, even though litigation has not fully proceeded in Colorado’s state courts.

Other cases have advanced across the country, albeit with slightly different arguments. In October, the Maryland Supreme Court heard arguments in a case against large oil companies that claimed companies concealed information about their products’ contributions to climate change. Justices on the court appeared skeptical of three separate cases from Baltimore, Annapolis and Anne Arundel counties against the British oil and gas company BP.

“This is throwing a bunch of legal spaghetti up on the wall and seeing what sticks,” said Phil Goldberg, special counsel for the Manufacturers' Accountability Project. “All these different kinds of the combinations and permutations undermine the idea that there is any kind of legal theory or finding behind these allegations that they may have.”

Gerrard said it is possible the Supreme Court will only rule on the cases involving state nuisance laws, rather than the cases that focus on deception from energy companies. He said the energy companies are likely to succeed if the court primarily focuses on issues involving state nuisance laws.

“There is ample documentation already that some of the defendant companies did engage in disinformation campaigns even though their own scientists were telling them that climate change is real,” Gerard said.

Climate change litigation across the country faces a unique infection point after the Trump administration repealed the Endangerment Finding, a landmark rule that allowed the Environmental Protection Agency to regulate carbon emissions.

“That means that there’s no longer the argument that the EPA’s power gets in the way of these cases,” Gerard said.

The legal experts said they hope justices on the Supreme Court will institute a federal energy policy framework that can define climate change litigation moving forward.

“We have this partisan divide and that’s why we don’t have Congressional action and why the environmental community is trying to use every lever available to it,” Gerard said. “I’d love to see one federal approach.”