More Federal Climate Lawfare

Todd Rokita, AG Indiana, asks in his Newsweek article Why Did The U.S. Solicitor General Flip-Flop on Climate Change? Excerpts in italics with my bolds and added images.

In a case called Suncor Energy Inc. v. Board of County Commissioners of Boulder County, U.S. Solicitor General Elizabeth Prelogar recently told the Supreme Court that climate-change cases should be heard not in federal courts, but in deep-blue, progressive state courts. Calling this proposal politically opportunistic would be an understatement.

Sixteen states disagree, as we have made known through a brief
filed by my office. Federal law should govern this and similar cases,
according to legal precedent.

My office always stands for the rule of law and fights for it in the courtroom. This case is no different, as it represents a sharp departure from the Justice Department’s longstanding view that global climate change is a federal issue that belongs in federal court.

The jurisdictional issue may seem mundane, but the stakes are high. At a time when energy costs already burden hardworking families, environmental activists insist on banning cost-efficient, safe energy production practices. Unable to push their environmental agenda through Congress, they have turned to a series of multi-billion-dollar lawsuits against energy companies in state courts across the country alleging that state and local governments suffer harm from climate change.

The central claims of these cases are that fossil fuel extraction imposes net harm on the world, leading to climate change, and that energy production and promotion are a “public nuisance” for which energy companies must pay.

Federal courts would undoubtedly reject these claims, which is why activists
are fighting to keep their claims in front of their favorite state courts.

The Office of the Solicitor General had previously taken a stand against such gamesmanship, recognizing that climate change claims are inherently federal. But the current solicitor general’s abrupt departure from that position confirms that politics has replaced law in her office.

The solicitor general represents the United States before the Supreme Court and is the only federal officer required by statute to be “learned in the law”—a high calling. Past solicitors general described their obligation to speak “on behalf of the rule of law.”

The Supreme Court relies on the solicitor general to be a non-partisan, trustworthy representative and interpreter of the law. In the words of Seth P. Waxman, solicitor general during the Clinton administration, this “special relationship to the Court is not one of privilege, but of duty”—a duty that includes an obligation “to respect and honor the principle of stare decisis,” meaning consistency over time regardless of the political interests of the current administration.

Interstate environmental issues, especially those relating to air pollution and climate change, have long been governed by federal law and resolved by federal courts. In 2011, the Supreme Court reaffirmed it “would be inappropriate” to apply state law to claims arising from transboundary greenhouse-gas emissions and climate change.

This makes good sense. Greenhouse gas emissions inherently transcend state borders—the term, after all, is “global climate change” not “Boulder County climate change.”

The Supreme Court has recognized that allowing state courts to interfere with federal regulation of energy production and emissions would “undermine the important goals of efficiency and predictability” and “lead to chaotic confrontation between sovereign states.”

The Office of the Solicitor General has embraced this position for decades, and solicitors general appointed by presidents from both parties have defended it—including left-wing Democrats who used climate change as part of their political platform.

So, in 2022, when the Supreme Court asked the Office of the Solicitor General if lawsuits seeking damages for climate change implicate state or federal issues, and whether they should proceed in state or federal court, the answer should have been simple. But the solicitor general instead said these cases should proceed in state court.

This flip-flop lacks credible explanation.

Here, the solicitor general seems to be acting for special interests and attempting to fix President Joe Biden‘s failure to achieve the climate change outcomes he promised.

Perhaps, instead of “learned in law,” the current solicitor general is
“learned in politics.” My office refuses to stand idly by without a fight.