The U.S. Supreme Court recently signaled a shift in climate litigation aimed at energy producers, allowing the suits to proceed in state rather than federal courts across the country. This is bad news for energy producers and consumers.
In a unanimous decision written by the late Justice Ginsburg, the high court previously found that climate change policy is not under the purview of federal courts and is better suited for Congress. State courts conversely are held to no such standard and are generally viewed as friendlier venues for winning massive awards against energy companies.
Nearly two dozen states, cities, and municipalities across the country are suing major energy companies, in an attempt to hold them liable for damages that they allege were caused by climate change. Three localities in Colorado — Boulder County, San Miguel County, and the city of Boulder — have joined the litigation effort.
Given the global nature of emissions it is impossible to assign blame to a few energy producers in just one country for alleged damages caused by climate change. Everyone across the globe uses energy, and there are energy producers in nearly every country in the world. By that logic, everyone is responsible for causing “climate change.”
The architects of the Colorado litigation have said: “Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.”
Colorado residents rely on energy products to heat their homes, fuel their vehicles, and live their daily lives. Increasing energy prices significantly would be financially devastating — especially to low income and minority communities. Since Colorado has a major energy industry presence, if these lawsuits are successful the statewide economic costs would cause tremendous harm.
Ultimately, courts are not the appropriate venues for setting environmental policies on such a scale, legislatures are. Former Attorney General of Colorado and U.S. Secretary of the Interior, Gale Norton, noted, “By establishing rules that punish oil and gas companies, such cases can tilt the direction of energy development … it is the type of fundamental policy that should be determined by elected officials, not by state court judges.”
Colorado policymakers have already shown that they can advance productive and innovative ways to reduce emissions — the main culprit environmentalists blame for climate change — without the need for such counterproductive lawsuits. For example, in 2021 the Legislature passed a bill with broad bipartisan consensus to “Promote Innovative and Clean Energy Technologies in the Electric Utility Sector.”
Instead of litigating against the very businesses that are helping to create the sustainable future that environmentalists claim they are fighting for, these local governments should find ways to expand private incentives that will help support a cleaner energy future.
Emissions in the American power sector have dropped by 35% since 2005, mainly due to investments made by utility providers to switch to cleaner burning natural gas and other alternative fuel sources. As the demand for newer and cleaner energy sources continues to grow, the private sector will continue to innovate to meet that demand.
Paul Prentice is a senior fellow at the Independence Institute, a free market think tank in Denver.
