Climate policy is the purview of Congress, not the courts

The Supreme Court on January 19 heard oral arguments in a case (BP PLC v Mayor and City Council of Baltimore) that addresses an exceedingly narrow topic: whether or not the “federal officer jurisdiction” doctrine should direct climate lawsuits by states and municipalities against energy producers into state or federal court. Most such lawsuits attempt to claim that localized flooding and other phenomena are an effect of anthropogenic climate change driven by the use of fossil fuels, and that the energy producers are responsible for the creation of such nuisances, whether directly or through a purported historical failure to provide accurate information about the climate effects of fossil fuel consumption.

The enormous uncertainties about the climate effects of increasing atmospheric concentrations of greenhouse gases – acknowledged fully by the Intergovernmental Panel on Climate Change in its latest assessment report – have been shunted aside in the various lawsuits by the plaintiffs, who simply assert that flooding and other phenomena are the fault of the energy producers. Accordingly, the effects of fossil fuel use and the “accurate information” accusations are far more dubious than commonly asserted, a point to which I return below. 

Nonetheless, the stakes are enormous. At a narrow level, the plaintiffs’ legal arguments about the liability of the energy producers are expansive, to put it mildly, and federal courts as a general proposition are less receptive to such arguments than state courts. Accordingly, two such suits were dismissed by federal district courts in 2018, but both are now under appeal by the plaintiffs. 

More broadly, because moving such litigation to federal courts reduces the likelihood that it will succeed, federal court jurisdiction is far more consistent with the separation of powers. National climate policies are within the authority of Congress to enact, or not, as it sees fit as an outcome of the congressional bargaining process driven by disparate views of the political benefits and costs of such policies. Courts, on the other hand, are poorly positioned to evaluate the complex tradeoffs inherent in climate policies, which would be an inconsistent and costly patchwork if implemented as a result of state judicial decisions. 

Can anything be more obvious than the reality that the climate litigation game is a politicized response to the refusal of Congress to enact policies limiting greenhouse gas emissions? For the environmental activists, almost any means available is justified in pursuit of its preferred policy outcome: an elimination of fossil fuels as a matter of ideological imperative.

Using the courts rather than Congress as a vehicle to achieve that end is deeply problematic in terms of the separation of powers, which as a constitutional construct is a central bulwark against the rise of authoritarianism. Climate policy pursued through litigation fundamentally is anti-democratic, substituting the preferences of judges for the actions of elected officials accountable to the citizenry. More broadly, litigation aimed at specific industries is a direct threat to the central purpose of the U.S. Constitution, to wit, the protection of specific groups against discrimination driven by the whims, passions and distorted accusations of other interest groups and transitory political coalitions.

Let us not delude ourselves about what actually is going on. Apart from the ideological opposition to fossil fuels, climate litigation is a money chase aimed at deep pockets, thus hiding the enormous costs of increasingly expensive energy to be inflicted upon large numbers of consumers, workers and investors. One prominent supporter of the Baltimore lawsuit admitted that “Like many issues surrounding climate change, increased availability of funding and access to funds means a lot for what cities are able to do.” Precisely why are energy consumers and producers responsible for funding the wish lists of local and state officials and their constituencies?

And so it is no surprise that climate litigation has become big business, a reality illustrated in detail in a recent report. Why is it fossil-fuel producers who are responsible for the purportedly adverse effects of GHG emissions? Why not those who use fossil fuels, that is, everyone? One part of the answer is obvious: The states and municipalities pursuing such litigation themselves are important consumers of fossil fuels. Why should they not sue themselves?

And then there is the fundamental dishonesty inherent in the plaintiffs’ central stance that flooding (and all other adverse weather or climate events) somehow is the result of fossil fuel consumption. (The peer-reviewed literature does not support that assertion.) Seriously? Are no such phenomena the result of natural forces? More to the point: Are courts in a position to sort out such massive complexities?

The Baltimore case now before the Supreme Court is crucial not because decisions about climate policy belong in federal court, but because shifting such litigation away from state courts is the judicial outcome consistent with preserving the power of Congress to formulate climate policy. Courts cannot do what Congress can: evaluate the relevant tradeoffs between the enormous benefits of fossil fuels and the purported adverse effects of their production and use. It is not the climate that is at stake. Instead, it is the rule of law and the preservation of freedom and self-government. 

Benjamin Zycher is a resident scholar at the American Enterprise Institute.