The City and County of Honolulu about four years ago filed a “public nuisance” lawsuit against the energy producers, attempting to hold them liable for the purported effects of anthropogenic climate change in Hawaii, and accusing them of “deceiv[ing]” the public about the consequences of the emissions of greenhouse gases attendant upon the use of fossil fuels. The Hawaii Supreme Court last October affirmed a trial court decision not to dismiss the Honolulu lawsuit. The defendants now have asked the U.S. Supreme Court to review that ruling, and to consider whether federal law precludes the application of state law to liability claims allegedly caused by interstate and international greenhouse gas emissions. The public interest would be well served if the Supreme Court takes up this review.
The defendants clearly are correct. The Hawaii Supreme Court ruling conflicts with the unanimous April 2021 ruling by the U.S. Court of Appeals for the Second Circuit dismissing New York City’s lawsuit against five of the largest fossil energy producers: Municipalities may not "utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions." In other words, federal law precludes state-law claims because state and local governments may not exercise control over U.S. energy and climate policies in ways conflicting with federal policies. Despite the fact that Hawaii obviously is not part of the Second Circuit, other such lawsuits are in progress, and so it is important that the U.S. Supreme Court grants review of this case and clarifies the issue.
The Honolulu lawsuit, like the others around the country, is meritless in its claims, first because U.S. emissions alone are virtually irrelevant as a component of global emissions. U.S. GHG emissions (in CO2 equivalents) from all fossil fuel consumption in 2021 were about 4.6 billion metric tons, rising slightly to about 4.7 bmt in 2022. Global emissions were about 41.3 bmt in 2022. If we estimate the climate effects of that U.S. GHG emissions share of 11.4%, using the Environmental Protection Agency climate model under assumptions that exaggerate those effects, U.S. GHG emissions would increase global temperatures in the year 2050 by 0.056°C. By 2100: 0.157°C. Even the predicted impact by 2100 would be barely detectable, because the normal year-to-year variation (“standard deviation”) in the surface temperature trend is about 0.11°C.
This straightforward analysis destroys the Honolulu plaintiffs’ assertions (pp. 34-35) that the fossil energy producers’ “products released a substantial percentage of anthropogenic greenhouse gases to the atmosphere between 1965 and the present,” and that the “Defendants’ conduct caused a substantial portion of global atmospheric greenhouse gas concentrations, and the attendant historical, projected, and committed disruptions to the environment—and consequent injuries to the City—associated therewith. Defendants, individually and together, have substantially and measurably contributed to the City’s climate crisis-related injuries.”
And by the way: Petroleum products account for about four-fifths of Hawaii’s total energy consumption, the highest share for any state. Do the politicians actually want to pretend that they are innocent bystanders? Precisely who is deceiving whom?
The lawsuit is meritless, second, because of the assertion that “Defendants’ efforts … to deceive about the consequences of the normal use of their fossil fuel products; to conceal the hazards of those products from consumers; their promotion of their fossil fuel products despite knowing the dangers associated with those products; their dogged campaign against regulation of those products based on falsehoods, omissions, and deceptions; and their failure to pursue less hazardous alternative products available to them; unduly inflated the market for their fossil fuel products. Consequently, substantially more anthropogenic greenhouse gases have been emitted to the environment than would have been absent that conduct.”
Even today, the uncertainties about the past and ongoing effects of GHG emissions are massive, as anyone reading the latest Assessment Report (in particular, the Working Group 1 report on The Physical Science Basis) from the Intergovernmental Panel on Climate Change would discover. The uncertainties about the future impacts are vastly greater still. Example: IPCC cannot determine precisely (p. 46) — because the scientific literature reports a broad range of findings — the future impact of increasing atmospheric concentrations of GHG. The plaintiffs actually assert that the fossil fuel producers “knew” things years and decades ago that were not known then, are not known now, and are the subject of sharp disagreement in the scientific literature, a state of affairs virtually certain to remain with us for a very long time because the determinants of climate shifts are massively complex.
The absurdities continue. The “failure to pursue less hazardous alternative products available to them” obviously is due to the efficiency of fossil fuels in terms of both costs and the satisfaction of consumer preferences. Were the fossil producers supposed to produce “alternative products” that were uncompetitive? Do the plaintiffs believe that the fossil producers should have colluded to keep fossil fuels off the market? Given that fossil energy production is a global enterprise, precisely how should the domestic producers have dealt with the competitive challenges posed by foreign fossil fuel output?
And with respect to the “hazards” and “dangers” of the fossil energy created by the U.S. fossil producers: Nowhere in the Honolulu lawsuit is there a factual delineation of the purported climate problems created by anthropogenic GHG emissions. There is the standard reference to temperatures higher by about 1°C since the preindustrial period, with literally no acknowledgement that part of that increase has been anthropogenic and part natural. Other than that, the entire (very short) discussion is wholly qualitative, attempting to imply some sort of looming climate crisis while offering no actual evidence of any such condition, the reason for which is obvious: There is no evidence of a climate “crisis.”
The issues inherent in the various state and local lawsuits against the fossil energy producers are far broader than the ideological money chase on display. Affirming the centrality of federal law in this context is far more consistent with the separation of powers. because national climate policies absolutely are within the authority of Congress to enact, or not, as it sees fit as an outcome of the Congressional bargaining process driven by disparate views of the political benefits and costs of such policies. State laws and policies offer only the prospect of a hodge-podge of policies, rules, and constraints, with chaos the only appropriate description of such an outcome.
The separation of powers is a central bulwark against the rise of authoritarianism because climate policy pursued through litigation would substitute the preferences of judges in place of actions by elected officials accountable to the citizenry. More broadly, litigation aimed at specific industries is a direct threat to the central purpose of the U.S. constitution: the protection of unpopular political groups from the whims, passions, and distorted accusations of groups pursuing ideological agendas, rent-seeking industries competing with conventional energy, and officials unconcerned with the larger constitutional damage caused by their political ambitions.
