Companies are secretly promoting the argument that the state should not be allowed to punish the fossil fuel industry. Lobbying state legislatures Pass legislation to ban climate change lawsuits against them. On the other hand, the Trump administration intervened in states including New Yorkseeks to repeal the state’s climate law.
16 state attorneys general I wrote a letter to Attorney General Pamela Bondi last June.warned that “some state and local governments continue to undermine U.S. energy production and use” and have “declared a de facto all-out war on traditional U.S. energy.”
They said lawsuits were “growing at an alarming rate” and suggested the federal government could limit funding or create “liability shields” to states that pursue these laws. Those efforts may become unnecessary if the courts rule in favor of the industry.
Fossil fuel companies argue in their lawsuits that states do not have the power to regulate the industry and only the federal government can impose penalties.
“The defendants’ main argument is that climate change is a global problem and if a court is going to address it it should be a federal court, and indeed Congress should act,” Gerrard said. “But unless Congress takes action, state courts should not take actions that fundamentally define national policy.”
They argue that if a state court like Colorado’s finds ExxonMobil liable and orders the company to pay millions of dollars in damages, it would effectively set the nation’s climate change policy. And Gerrard said polluters used to make a strong argument that since the federal government regulated emissions, states shouldn’t.
But that argument has become much weaker these days.
The fossil fuel industry has less foothold in making its case since the White House and federal agencies decided last month to remove endangering research and all but relinquish authority to regulate climate emissions.
Nevertheless, Experts say a ruling tossing out the Colorado case would effectively end similar lawsuits. It also depends on which parts of the case the court is unable to rule on for the state: emissions impacts, deceptive language and marketing arguments, or both.
“The Supreme Court could seize both types,” Gerrard said. “Alternatively, they may say that a common law nuisance case cannot proceed, but a fraud case may proceed. That is also a possibility.”
