Climate Solutions Lie With Congress, Not State Tort Lawsuits

Climate change is an issue of national and international magnitude governed under federal law, and Congress will need to solve it. Yet some state and local governments have followed a misguided approach—with encouragement from the Biden administration—to bring tort claims against energy producers for alleged climate-related damages. Resources spent suing individual energy companies so they can shoulder the cost of climate change could be better directed to broad, pragmatic solutions.

In the near future, the US Supreme Court has an opportunity to settle this substantive issue for good. Energy producer defendants filed a currently pending cert petition in Sunoco LP v. City and County of Honolulu, asking the Supreme Court to review whether federal law precludes applying state law to emissions-related tort claims.

The Supreme Court should review these state and local suit questions for two reasons. First, it’s too difficult to trace the responsibility for damages to individual parties, and relatedly, existing federal law—particularly the Clean Air Act—preempts these kinds of diagnostic suits.

Because climate change is a diffuse global phenomenon, even partial responsibility for its effects in a locale can’t be definitively attributed to one industry, much less one company. In Sunoco, the plaintiffs conceded this point: “It is not possible to determine the source of any particular individual molecule of CO2 in the atmosphere attributable to anthropogenic sources because such greenhouse gas molecules do not bear markers that permit tracing them to their source, and because greenhouse gasses quickly diffuse and comingle in the atmosphere.”

The Clean Air Act already comprehensively regulates interstate emissions, just as the Clean Water Act regulates interstate water pollution. In a 1987 case involving the Clean Water Act, Int’l Paper Co. v. Ouellette, the Supreme Court ruled that federal law preempts state-law damages suits for interstate water pollution. The clear holding was that interstate pollution “is a matter of federal, not state, law.” The same reasoning applies under the Clean Air Act.

Some lower courts have made analogous determinations. In January, the Superior Court of Delaware granted in part a motion to dismiss Delaware v. BP America, Inc. on grounds that some of the major claims were preempted by the CAA. Judge Mary Johnston stated, “claims in this case seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution, are pre-empted by the CAA. Thus, these claims are beyond the limits of Delaware common law.”

In Illinois v. City of Milwaukee, Wis., the state of Illinois filed nuisance claims under federal and state common law against the municipality, Milwaukee, for allegedly polluting Lake Michigan. While the action was pending, Congress enacted comprehensive amendments to the Clean Water Act, and the Supreme Court held those amendments had displaced the remedy previously available under federal common law.

The US Court of Appeals for the Seventh Circuit, on remand, then correctly ruled that Illinois’ state-law claims couldn’t proceed due to their displacement by the federal amendments. As the decision explained, “The basic interests of federalism and the federal interest in a uniform rule of decision in interstate pollution disputes required the application of federal law.”

During my time at the Department of Energy, we tried to model a more effective approach, collaborating with Congress to expand investment into renewable energy to achieve zero- or low-carbon solutions. While I served as assistant secretary in 2019, the agency announced $128 million in dozens of projects to advance solar technologies and drive down costs.

The DOE also expanded research and development on public-private approaches to emission reduction, facilitating the largest-ever single investment agreement in our National Laboratories, including the National Renewable Energy Laboratory, with energy producer ExxonMobil. We also initiated the Plastics Innovation Challenge to accelerate innovation in energy-efficient plastics recycling.

These types of initiatives are tangible, practical ways to tackle climate change. These solutions were goal-oriented, unlike the state suits pushing costly and lengthy lawfare in the name of advocating for climate change. These states’ approaches seem mainly intended to penalize oil and gas producers to compensate for alleged damages from ubiquitous CO2 molecules.

The best way to address climate change is to approach the problem head-on with pragmatic solutions rather than lawsuits, which are expensive both financially and in opportunity costs.

Congress should step up and advance realistic legislative solutions. In the meantime, the Supreme Court should remove incentives to engage in counterproductive state-level litigation once and for all.

The case is Sunoco LP v. City and County of Honolulu, U.S., No. 23-947, response due 5/1/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Theodore “Ted” Garrish is president of the non-profit United Coalition for Advanced Nuclear Power (UCAN Power) and executive director of the Deep Borehole Demonstration Center. He was previously general counsel and in three assistant secretary positions including nuclear energy at the Department of Energy.

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