A number of current and former government officials, ex-military personnel and legal scholars are pushing for the Supreme Court to pick up a key climate change liability lawsuit in Hawaii and take it out of the state’s jurisdiction.
An organization led by former U.S. Attorney General Bill Barr, former high-ranking military officials, a number of state attorneys general and two prominent legal experts have each filed amicus briefs with the Supreme Court this week, urging it to take on Honolulu’s lawsuit against oil corporations, which alleges that the companies deliberately misled the public about their role in global warming. In their amicus briefs, the petitioners effectively point out that the case should be in the Supreme Court’s domain given the implications it could have for the U.S. economy, national security and federalism more broadly.
The defendants in the case — which include Chevron, Exxon Mobil and Shell — have asked the Supreme Court to hear their case; the nuisance lawsuit will proceed to trial in a lower court pending any substantial developments, according to Reuters.
In November 2023, the Hawaii Supreme Court rejected the corporations’ argument that the legal challenge effectively intends to regulate emissions and interstate commerce, subjects which are the domain of the federal government, according to Reuters.
Notably, the state supreme court’s chief justice has previously worked with the Environmental Law Institute (ELI), a Washington, D.C.-based environmental organization that has close ties to Sher Edling, the law firm representing the plaintiffs, a May 2023 Daily Caller News Foundation investigation found. The Hawaii Supreme Court also tried to argue in February that the so-called “spirit of Aloha” overrides the second amendment.
Rhode Island Official Admits State’s Climate Lawsuit Is Meant To Wring Money Out Of Big Oil: Court Docs https://t.co/ZuG4u3GMi4
— Daily Caller (@DailyCaller) March 14, 2020
“The Environmental Law Institute is an internationally recognized, non-partisan research, publishing, and education organization that has been operating for over 50 years,” a spokesperson for ELI told the DCNF. “ELI does not have close ties to Sher Edling.”
However, ELI co-founded the Climate Judiciary Project, which crafted a climate and law curriculum for judges handling environmental litigation like the Hawaii case, and the organization has worked closely with people who have consulted for or been employed by Sher Edling, the DCNF reported in the May 2023 investigation. The two entities also have received funding from several of the same left-of-center nonprofit organizations, Republican Texas Sen. Ted Cruz wrote in a February letter to Jordan Diamond, the president of ELI.
The Climate Judiciary Project’s “funding and ties to plaintiffs in climate change cases further belie ELI’s claim of neutrality,” Cruz wrote in the letter. “ELI and climate litigation juggernaut, Sher Edling, share staff,” Cruz also pointed out.
The Hawaii suit — one of several similar cases working their way through lower courts in which Sher Edling is intimately involved — could present the Supreme Court with a clear opportunity to address the issue of whether oil companies can be held liable for their alleged deception if it decides to take up the case. An amicus brief filed by the state of Alabama and 19 other states outlines this potential explicitly.
“The time for this Court’s intervention is now. The question presented has percolated for years, albeit in a removal posture that complicated review. Such complexity is absent here, and there is now a clear split between courts that will entertain state lawsuits over interstate emissions and courts that will not,” the states’ filing reads. “The grave threat these suits pose to equal sovereignty and our Nation’s energy infrastructure are reason enough for this Court to grant review.”
The filing also asserts that the plaintiff’s “theory used against energy companies can be expanded to allow targeting of any cross-border activity that purportedly ‘exacerbate[s] the impacts of climate change.’”
Two former chairmen of the Joint Chiefs of Staff, retired Air Force Gen. Richard Myers and retired Navy Adm. Michael Mullen, filed their own amicus brief echoing the states’ concerns about the potential for negative national security ramifications if the Supreme Court does not hear the case. Hawaii, Chicago, Massachusetts and numerous other jurisdictions pursuing nearly-identical lawsuits against the energy industry could impose an onerous and inconsistent legal environment for the companies in lower courts, undermining production and leaving the U.S. more vulnerable in the event of conflict, the former officials asserted.
“There is potential that the upshot of this litigation and the broad relief it seeks would negatively impact strong national interests in fuel security and military readiness,” the two former military officials wrote in their filing. “Fuel security is a crucial national interest and is especially critical to the U.S. military, in times of both war and peace, to power ships, tanks, and aircraft, provide energy to run bases, stations, and detachments, and enable numerous operations.”
John Yoo, a professor of law at the University of California, Berkeley, and Richard Epstein, a legal scholar at New York University, similarly highlighted potential national security ramifications, as well as concerns about the balance of the federalist system, in an amicus brief they filed in support of the corporations’ request for the Supreme Court to hear the case.
“The Hawaii Supreme Court’s misapplication of tort law is not a matter of state law, but instead represents the erroneous incorporation of a state tort standard into the federal common law of interstate pollution. Given the national importance of the energy industry, no further delay is prudent,” the scholars wrote in their brief. “Controlling energy has long constituted an important national security goal that not only supports economic independence and stability but also U.S. diplomacy and military capabilities. If this Court were to allow these tort cases to proceed, states and localities could handicap an interstate industry critical to the nation’s economy and security.”
The American Free Enterprise Chamber of Commerce, led by Barr, also threw its support behind the oil companies’ petition to the Supreme Court and emphasized the possible national security ramifications. Barr also took aim at the lawsuit’s central allegation that the fossil fuel companies engaged in a deliberately deceptive marketing campaign to obscure the damage their products purportedly cause, surmising that the Supreme Court should intervene to close off that avenue of legal attack against the American energy industry.
“Humans don’t use fossil fuels because of a ‘public relations campaign.’ They use fossil fuels because they are necessary to the technologies that underlay global human prosperity—from synthetic fertilizer, to cement, to plastics, to internal-combustion engines, to steel,” Barr and his colleagues wrote in their filing. “Given all this, how is a jury supposed to isolate the effect of a ‘public relations campaign’ on the additional use of fossil fuels, the effect of those additional fossil fuels on the climate, and the consequent effect of that in Honolulu or some other place?”
“The stakes could hardly be higher,” they added. “If Hawaii and like-minded states succeed in imposing an unwieldy patchwork of carbon penalties on private energy firms, the United States could soon become dependent on energy companies owned by foreign states to meet its energy needs, since foreign states alone can claim sovereign immunity. Many of those companies are controlled by countries hostile to the United States.”
