State Courts Should Not Be Writing US Climate Laws

Judges shouldn’t write laws that anti-fossil fuel factions can’t get Congress and People to enact

Paul Driessen

Earth’s climate has changed numerous times over the past half-billion years. But activists claim any recent or future changes result from fossil fuel use and agricultural practices.

Those activities raise still minuscule levels of carbon dioxide, methane and nitrous oxide (0.04, 0.0002 and 0.00003 percent of the atmosphere, respectively), allegedly altering climate and weather. Water vapor, Earth’s complex and chaotic climate system, and powerful solar and cosmic forces that combined to bring the Carboniferous Period (coal age), ice ages, a Little Ice Age, warm periods, and fluctuations in the frequency and intensity of extreme weather events are supposedly no longer relevant.

UN, US and EU climate activists, politicians and bureaucrats then blame fossil fuels for heat waves, cold spells, hurricanes, wildfires, floods, droughts and even abusive husbands. Kamala Harris says manmade climate change forced millions of illegal migrants to cross our borders since 2021.

Despite all this, the climate consortium has failed to get enforceable, workable international treaties that compel all countries to reduce global greenhouse gas (GHG) emissions. It’s failed to get the US Congress to enact national legislation – or make a convincing, robustly debated case that reducing a few GHGs can stabilize planetary temperatures and climate conditions that have never been stable.

So the consortium employs other devious strategies: regulating fossil fuel technologies and agricultural practices into oblivion; ignoring the 63% of global GHGs that come from China, India and a hundred other developing countries; and censoring and silencing experts and talk show hosts who present inconvenient facts, data and analyses.

Climate activists are also filing lawsuits in state courts against eight US oil companies whose products together account for a tiny fraction of the 11% of global GHGs emitted by the United States.

Nearly three dozen ultra-progressive jurisdictions want friendly in-state judges to decide complicated issues that arise from and affect every family, business, city, state and country on Earth. Instead of scientific and legislative debates and processes, they want one judge punishing energy companies for causing “dangerous climate change.”

The litigants claim they’re trying to save our planet from climate cataclysms. Their real goal is reducing our driving, flying, household heating and cooling, red meat consumption, living standards and free speech rights, even if doing so has minimal or no effect on emissions or the climate.

They want to avoid higher-profile federal courts that would more likely examine their far-fetched claims from national, international, scientific and economic perspectives. They’re worried that the US Supreme Court may decide whether far-left cities or states can circumvent legislative processes and instead use state courts to impose radical environmental and social agendas.

There is nothing ethical, legal or constitutional about this crony forum-shopping and backroom dealing. That’s another reason the plaintiffs panicked about the Supremes’ potential intervention, and argue that state judges can competently litigate the matter.

To ensure judicial “competence,” the Environmental Law Institute launched a parallel effort, the Climate Judiciary Project (CJP), to ensure that judges receive an “authoritative, objective and trusted education on climate science, the impacts of climate change, and the ways climate science is arising in the law.”

Of course, as Humpty Dumpty would have told Alice, when the CJP uses a word (like authoritative, objective, trusted, science or justice), it means just what they choose it to mean, neither more nor less, because the ultimate question is who is to be master – activist litigators and judges, or We the People and our elected representatives.

Raising even more questions, the CJP is funded by the same outfits that finance these climate lawsuits. The JPB Foundation gave $1 million to the CJP and $1.15 million to the far-left Tides Foundation’s Collective Action Fund, which pays the Sher Edling law firm to file lawsuits like these. The William and Flora Hewlett Foundation donated $500,000 to the CJP and $150,000 to the Action Fund. And so on.

The left knows their political ploy will tumble if the highest court in the land reviews the cases. That would be bad for them but good for our system of checks and balances, for common sense, and especially for reliable, affordable energy, jobs, healthcare and modern living standards.

Over 80% of our energy still comes from oil, gas and coal. Wind and solar are notoriously unreliable, require expensive backup power, and need a dozen times more raw materials per unit of electricity than natural gas generators. They cannot provide petrochemical products, including clothing, cosmetics, fertilizers, paints, plastics, pharmaceuticals and wind turbine blades.

“Renewable” energy is not clean, green, renewable or sustainable. Manufacturing batteries for electric vehicles and grid backup involves mining for numerous metals and minerals, in energy-intensive processes that destroy habitats, pollute air and water, and injure and poison miners and their families.

Much of that mining occurs in countries with corrupt governments and desperately poor families, like Congo and Myanmar where child and slave labor are pervasive. Ships haul the materials to China, the world’s largest polluter, which monopolizes the global battery production market and uses more coal, slave labor and pollution-intensive processes to produce “clean, green” energy products.

The EVs get marketed as “zero emission” vehicles, because there is no exhaust – and people don’t know this sordid history or that the electricity charging their batteries comes mostly from coal- or gas-fired power plants. And battery fires are furious and toxic.

Wind turbines also depend on oil, gas and coal for the metals and minerals in their towers and generators, fiberglass-and-epoxy blades and concrete-and-rebar bases. Solar panels blanketing hundreds of square miles of former cropland and wildlife habitat cause similar impacts. Sea-based wind turbines harm and kill wildlife, including endangered whales; land-based turbines kill millions of birds.

Pleadings and briefs in lawsuits brought in carefully chosen liberal state courts can ignore inconvenient facts like these, often preventing judges and juries from considering them.

They can target a few American oil companies for alleged climate cataclysms, while ignoring all other oil and coal companies worldwide, and countries that emit 89% of greenhouse gases. The state court lawsuits essentially and preposterously assert that production and refining processes used and products sold by these few oil companies are causing climate changes unprecedented in Earth and human history.

Recent Supreme Court decisions reveal why climate alarmists and rent-seekers are alarmed that the Court might intervene. West Virginia v. EPA held that, in the absence of clear legislative authority, government agencies cannot unilaterally issue regulations that have “major” economic or political significance.

Loper Bright Enterprises, Inc. v. Raimondo reversed the “Chevron deference” rule. Silent or ambiguous statutory texts no longer give administrative agencies unfettered power to interpret laws in ways that let them increase control over people’s lives and livelihoods.

Liberal state court decisions in these climate cases would have monumental consequences – for our environment, economy, lives and nation – despite Congress never having given any agency or court any such authority.

The Supreme Court should definitely intervene here – to ensure that these complex scientific, economic and political issues are fully studied, debated, vetted and voted on – not relegated to biased courtrooms.

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books and articles on energy, environment, climate and human rights issues.