In two separate briefs filed late last month, energy companies pushed back on the Biden administration’s recent support for Honolulu’s climate lawsuit, arguing for Supreme Court intervention and highlighting the inconsistency with positions held by previous administrations of both parties.
The U.S. Supreme Court is discussing the companies’ petition at their conference this Friday, meaning a decision on cert could come as early as Monday morning.
In recent weeks, legal experts and former federal officials have lambasted the Biden administration’s blatant disregard for well-established precedent, with some highlighting the clear political motivations to do so.
Companies Claim Biden Reversed Stance on Clean Air Act
The Solicitor General’s brief filed last month could be characterized as one foot in, one foot out.
While acknowledging that the state law climate cases against energy companies may run up against constitutional challenges down the road, the SG asserted in the meantime that the Clean Air Act does not “categorically preempt” state-law claims, and the Honolulu’s case should be permitted to proceed without Supreme Court review.
This marked a significant shift from previous administrations’ stances that such claims were entirely incompatible with federal law – and the reversal drew sharp criticism from the defendants in their reply briefs filed two weeks ago. In a standalone brief, Shell described the shift as part of a broader political effort to encourage “plaintiff-driven climate litigation against polluters,” a stance “not based on law.”
The companies disputed the SG’s arguments, arguing that now is the time to settle the dispute:
“In light of the enormous legal and practical importance of this case, now is the time to resolve the question presented. … The Court’s intervention is urgently needed to dispel the cloud of uncertainty hanging over one of this Nation’s most critical industries, to protect important federal interests in national and economic security, and to prevent wasting untold resources in litigating and adjudicating cases that should be dismissed at the outset.”
Biden Admin’s Clean Air Act Shift is Political
In recent weeks, legal experts and former federal officials have lambasted the Biden administration blatant disregard for well-established federal preemption, with some highlighting the clear political motivations to do so.
Writing in The Hill, attorney Michael Toth labeled the decision as a wholesale reversal of precedent under both political parties, including the Obama administration, and even contradicts the views of then-Supreme Court Justice Ginsburg:
“The top Justice department lawyers from the Obama and Trump administrations were standing on solid precedent. For over a century, the Supreme Court has held that interstate pollution must be governed by federal — not state — laws.” (Emphasis added)
Bernard McNamee, former Commissioner of the Federal Energy Regulatory Commission, argued in Law.com that the Solicitor General’s change of position on Clean Air Act preemption has all the hallmarks of political meddling as the Department of Justice adopts “outcome-based arguments” to help keep climate suits alive. And that is why the Supreme Court should “end lawfare as regulation.”
Indeed, National Review contributor and constitutional law scholar Ed Whelan called the SG’s brief “much more a political than a legal exercise”:
“It would be politically unpalatable for the Biden administration to agree with the oil companies’ constitutional arguments, but it would be directly contrary to the interests of the United States to disagree with them (as that would enable the fifty states to impose their own contradictory and varying laws on the same emissions emanating from sources around the nation and the world).” (Emphasis added)
George Mason University Law Professor Donald Kochan made a similar critique, arguing the administration completely abdicated its responsibility to represent any discernable federal interests while instead prioritizing the agenda of climate plaintiffs. This failure, he noted in The Hill, opens the door for the incoming Trump administration to issue an amended brief correcting these glaring omissions:
“Strikingly absent from each solicitor general brief is any effort to assert the peculiar interests of the United States government. … This failure exposes the weakness of the Biden administration’s position supporting the climate change plaintiffs. And the absence of any effort to consider several key federal interests leaves the door wide open for a persuasive and influential amended brief from the incoming Trump administration solicitor general next January. That corrective brief can be accurately stylized as simply addressing fatal errors of omission necessitating an alternative conclusion.” (Emphasis added)
BOTTOM LINE: The Biden administration’s last-minute reversal on the Clean Air Act – arguing that it does not categorically preempt state climate lawsuits, which seek to use state law to regulate interstate emissions – is yet another indication that support for climate cases is grounded in political agendas, not legal reasoning.
Read the full story at EIDclimate.org.
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