Boulder’s climate lawsuit against oil and gas producers would return the U.S. to the era of the Articles of Confederation. The Supreme Court kicks off a new term Monday with a case ostensibly about climate change but with much bigger stakes. The real issue is whether states and localities can turn federalism on its head to dictate policy for the rest of the country.
Boulder and more than 30 other state and local governments have sued oil and gas producers for alleged damage caused by their global CO2 emissions. Boulder wants compensation for wildfires, the costs for mitigating pest infestations, reduced farm output and lower employee productivity, among other things. The Supreme Court ruled unanimously in AEP v.
Connecticut (2011) that the Clean Air Act pre-empts similar state nuisance claims related to CO2 emissions. But Boulder is trying to evade the Court’s holding by suing oil and gas producers in state courts. Boulder says the companies created a public nuisance and engaged in a “civil conspiracy” by selling products without warning about their climate effect.
The Colorado Supreme Court ruled Boulder’s state claims aren’t pre-empted by federal law. The judges reasoned that Boulder’s claims related to the production and marketing of fossil fuels, not their CO2 emissions. This is a semantic distinction without a difference.
Under the Colorado court’s ruling, oil and gas companies would have no choice but to cease producing fossil fuels to avoid enormous liability. That’s the goal of the lawsuits, in addition to extracting a big government payday. This makes the stakes much larger than a simple matter of federal pre-emption.
Letting a state or locality dictate U.S. climate policy would turn the Constitution’s proper understanding of federalism upside down. Under the pre-Constitution Articles of Confederation, states engaged in predatory behavior as they sought commercial advantage over other states. The founders wrote the Constitution in part to fix that deficiency.
The Supreme Court has since repeatedly held that states can’t regulate commerce that occurs wholly outside their borders. This is what Boulder and its fellow litigants are seeking to do. They want to hold oil and gas companies liable for production in states like Texas and Alaska that don’t share Boulder’s hostility to fossil fuels.
This would undermine the sovereign prerogatives of states that encourage production within their own borders. That’s not merely climate lawfare. It’s economic warfare. "No single State" can impose "a policy for the entire Nation" or "even impose its own policy choice on neighboring States," the Court said in (1996).
The Clean Air Act gives states limited authority to regulate emissions within their borders. It also sets up a scheme by which the Environmental Protection Agency can regulate pollution emitted in one state that harms downwind states. If Colorado wants to dun companies for their in-state emissions, it can, as California has with its cap-and-tax policies.
But it can’t supplant Congress’s power to regulate commerce among the states. Tolerating Boulder’s raid would blow the Constitution’s doors open to laws like those in New York and Vermont that seek to raid U.S. oil and gas producers for alleged damages caused by global CO2 emissions. It would also let states and localities intrude on the foreign policy powers that the Constitution vests in Congress and the President.
Climate change is a global issue, and Boulder’s raid on U.S. companies will do nothing to limit CO2 emissions from coal plants in China and India. Yet Boulder and the climate lobby behind its suit are claiming that the city has a role in regulating carbon emissions. The Boulder County Commissioners didn’t negotiate the Paris climate accord, but they are acting as if they should have had a seat at the table.
The U.S. is currently fighting a war with Iran to guarantee the flow of oil that will affect gasoline prices. Boulder is pursuing a policy that seeks to keep oil prices high. That is ...
Source: Wall Street Journal US Business · Summarized by HeadlinesBriefing