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This Week: Ninth Circuit to Hear Oral Arguments in Hawaii Cases

On Thursday, the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in the City and County of Honolulu and the County of Maui’s climate tort lawsuits against energy manufacturers. The manufacturers are appealing a district court’s order to remand the cases back to state court.

Tomorrow’s arguments come only a few weeks after the Fourth Circuit heard similar arguments in the City of Baltimore’s lawsuit. Here are a few points to consider ahead of the arguments:

  1. The plaintiffs want these lawsuits to land in state courts, where they think they will be better able to undermine U.S. Supreme Court jurisprudence on climate lawsuits.

The federal courts have already rejected efforts to address climate change through litigation. In 2011, the Supreme Court dismissed a climate claim in American Electric Power v. Connecticut and cautioned against such lawsuits. It stressed that to adjudicate these claims, courts would end up deciding climate public policy, which cannot be done “by judicial decree.” Congress and the Environmental Protection Agency are “better equipped to do the job,” according to the High Court.

Last year, the U.S. Court of Appeals for the Second Circuit dismissed New York City’s case—a case very similar to Honolulu’s and Maui’s case here—stating these cases “ignore economic reality.” Just like in AEP v. Connecticut, this round of climate lawsuits, while packaged differently, are functionally no different and should be dismissed. It is in this context that the U.S. Supreme Court directed the Ninth Circuit to consider all grounds for removal.

  1. These cases will do nothing to address climate change.

Unlike traditional state tort suits, this litigation doesn’t seek to stop the alleged harm, which in this case is climate change. Courts have recognized this: in dismissing New York City’s lawsuit last year, the Second Circuit stated, “If the producers want to avoid all liability, then their only solution would be to cease global production altogether.”

Identifying solutions to climate change—at both global and local levels—is a federal legislative and regulatory matter that cannot be decided piecemeal by state judges based on a narrow set of facts and interests.

  1. This litigation campaign is designed to raise the price of energy for American families and businesses.

This litigation is intended to make energy significantly more expensive as a way to discourage its use and punish its manufacturers, according to one of the lawyers involved in the campaign. In an article laying the foundation for the litigation, a lawyer for another one of the climate lawsuits wrote that, while the lawsuits are packaged as holding energy companies accountable, “holding companies responsible is to hold oil consumers responsible.”

Balancing America’s need for affordable, reliable energy, along with climate action, is critical to America’s energy policy.