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'Greens' Win a Victory But Will Likely Lose the War
Christopher Horner • 29 Apr, 2023 • 4 Min Read
Lawfare never sleeps.
The United States Supreme Court this week declined to hear a challenge by oil and gas companies seeking to overturn rulings in two lawsuits, both filed by state and local governments seeking billions of dollars because energy company products supposedly caused, or made worse, devastating “climate change."
This is being reported as a victory for the environmental lobby, but those reports are misleading for a variety of reasons. Among them is that "climate” wasn’t actually at issue before the Court in this case. This was a jurisdictional question. The oil and gas companies were hoping to remove the matters to federal court given how the purported rationale — global "climate change" —unsubtly suggests this is not well-suited for resolution by, say, a county superior court in Maryland.
Meanwhile, after having stumbled in the federal courts, these litigious, progressively-led government plaintiffs view state courts as their best hope to obtain the demanded riches in disgorged revenues, to pay for politicians’ agendas that legislatures won’t fund through direct taxation.
Don't get hysterical.
The Court’s decision to not intervene dealt the oil companies a setback, at least for the time being. This was in fact the second time the Court has dealt with what are now two-dozen such cases in a nationally coordinated climate-litigation campaign. The first case, on a somewhat similar if even more arcane procedural question, did go to argument and the companies prevailed. More cases will make it to the Court in the near future, but these should be viewed as the pre-game warmups. Because inevitably the problem the environmentalists are going to run into is the merits of the cases themselves.
Indeed, this veritable tsunami of state-court lawfare began with demands in the name of companies purportedly causing “climate nuisance.” After setbacks in federal courts in California and New York (the latter affirmed on appeal), as well as a drubbing in New York state court in the first case filed, the plaintiffs adapted. They claim now that, upon further reflection, their demands for billions of dollars from the same parties and citing the very same behavior are really matters of state consumer protection laws, with which the federal courts should not trouble themselves. And so, the campaign of vexatious multi-state litigation to bring their targets “to the table,” to negotiate their way out of the assault and provide the plaintiffs with a “sustainable funding stream,” continues.
There is no doubt this is what is going on. A party whom I assisted in its amicus curiaebrief on the previous trip to SCOTUS, Energy Policy Advocates, points out that while the principals do not advertise this — in fact they go to great lengths to obscure it — they also have nonetheless openly, repeatedly admitted it.
Equally farcical is the newfound claim that these claims are not about global this or greenhouse that, at all — which were obvious elements of the claims that led federal judges to declare the issue belongs in federal courts. Now, we are told that was all a misunderstanding.
Yet no change in branding or rhetoric can alter that this is a demonstrablycoordinated national campaign to litigate purely local concerns. Further aggravating the pretense, this anti-energy campaign managed out of New York and California is quietly financed by Hollywood through charitable foundations giving “grants” to, and otherwise paying, the plaintiffs’ lawyers. Who nonetheless have been awarded “contingency fee” contracts by progressive politicians to file the suits. It is for just such circumstances, where plaintiffs seem to be playing political odds and hoping for local sympathy, that our system has longstanding doctrine that federal courts are appropriate fora to guard against a legitimate fear of state court bias and other abuse.
In addition to rebranding after losing the first few rounds and realizing that a federal judge might keep the case and even — gasp — take testimony on “the science,” the climate industry had another trick up its sleeve. Immediately, a curious proliferation of briefings arranged for federal and then state and local judges appeared on the calendars of august judicial education organizations. One email obtained by Energy Policy Advocates paraphrases a federal judge on the D.C. Circuit, who is heavily involved in these seminars, as having asked about “counteracting arguments from nonbelievers.” The nerve!
These continue, including several thisspring, and appear to be less briefings than indoctrination sessions, featuring plaintiff’s witnesses from past trials and advocates with a history of filing friend-of-the-court briefs in support of “climate action.”
Lemme explain to you how this works...
All of which is all to say that this climate litigation industry is multi-faceted. Other unsavory details include the infamous play by Michael Bloomberg to staff state attorneys general with donor-provided activist attorneys to push his climate agenda, including through filing their own climate suits against industry.
Other donors had a similar idea of providing staff, but to "enhance" congressional investigations. During the previous Congress, the House Oversight Committee pitched in, launching a “year-long investigation” of the defendants. Subcommittee Chair Ro Khanna (D-CA) first boasted that this was guided by former Hill staffers-turned- donor-provided consultants. That was before he denied it. Such behavior is, after all, an ethics violation. Still, it is noteworthy that the donors themselves believed that they were underwriting enhanced congressional oversight through the group Khanna enlisted.
So all seems to be fair in the weaponization of government investigations against political opponents and litigation targets, including subpoenaing them and, we now know, turning over the fruits of that effort to the plaintiffs’ bar. Still, none of it seems to inspire confidence among the plaintiffs. Recently, the campaign to herd these industry targets “to the table” has invoked the prospect of charging energy executives with “climate homicide.” The very extremity of this suggests that they believe their current litigation strategy will likely not prevail.
Clearly, the Supreme Court is going to see a lot of these climate litigants in the future. At its next opportunity, here’s hoping the Court decides to at least place the this current lot of “climate” prosecutions firmly under federal jurisdiction which, we have seen, will also put an end to it. Then it will be on to the next innovation in climate lawfare.
Christopher C. Horner is New York Times best-selling author of four books on “global warming” and environmental policy, law and politics. Horner served on the Trump Transition “Landing Team” with responsibility for EPA. An attorney in private practice for nearly thirty years in Washington, DC, Chris spent twenty years as a senior fellow with the Washington DC think tank Competitive Enterprise Institute, worked in Brussels for the European Enterprise Institute, and now represents policy groups via Government Accountability & Oversight, P.C. Follow him on twitter at @Chris_C_Horner