NAM Files Amicus Brief Urging Supreme Court to Hear States’ Challenge to Climate Litigation

The National Association of Manufacturers filed an amicus brief in the U.S. Supreme Court, urging the Court to accept the Bill of Complaint brought by 19 state attorneys general against five states that are bringing climate lawsuits against energy manufacturers.

The 19-state Complaint, led by the Alabama attorney general, argues that the litigation is an unconstitutional attempt to shape U.S. energy policy through a patchwork of state court damages awards: “The Court’s intervention . . . is warranted now because Defendant States are not independent nations with unrestrained sovereignty to do as they please. In our federal system, no State ‘can legislate for, or impose its own policy upon the other.’ . . . Yet Defendants seek to set emissions policy well beyond their borders—punishing conduct that other States find ‘essential and necessary … to the economic and material well-being’ of their citizens.”

The NAM, in its 28-page friend of the court brief, urged the Supreme Court to review the Bill of Complaint to “examine the constitutional validity of a litigation campaign where some states are using their courts and liability laws to impose their preferred legal and public policy agendas” on other states.

Highlights from the NAM’s amicus brief include:

• “The Bill of Complaint asks the Supreme Court to examine the constitutional validity of a litigation campaign where some states are using their own courts and liability laws to impose their preferred legal and public policy agendas over climate change by regulating and effectively taxing greenhouse gas (GHG) emissions in other states, including from activities that are fully lawful in those states.”
• “When states filed the first wave of climate lawsuits, it was uncontroverted that the litigation would regulate the energy industry and limit GHG emissions from fossil fuels, not just in states where the claims were brought, but all states.”
• “In [American Electric Power v. Connecticut], this Court addressed that wave of climate litigation by unanimously dismissing the claims. The Court explained that litigation over the impact of GHG emissions on the climate are of national scope, are ‘meet for federal law governance,’ and that ‘borrowing the law of a particular State would be inappropriate.’”
• “The Obama administration’s Solicitor General, in in briefing this Court in AEP, explained . . . it would be ‘impossible to consider the sort of focused and more geographically proximate effects that were characteristic of traditional nuisance suits.’”
• “In an effort to circumvent AEP, the new litigation was manufactured to look like traditional state law damages claims rather than asking a court to directly regulate emissions or put a price on carbon use. To be clear, the state law damages theories in these cases are mere fig leaves.”
• “The climate suit filed by New York City was the first of these cases to be heard on the merits, and the Second Circuit saw through this veneer: ‘we are told that this is merely a local spat about the City’s eroding shoreline, which will have no appreciable effect on national energy or environmental policy. We disagree. Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.’”
• “Over the past year, motions to dismiss in several of the climate cases being heard in state courts around the country have started to be decided . . . In Delaware, the court concurred with the Second Circuit’s ruling, holding Delaware cannot sue fossil fuel producers for emissions outside of Delaware. . . . And a Baltimore court dismissed its climate case entirely: ‘The Constitution’s federal structure does not allow the application of state law to these claims.’”
• “Under the constitution and Clean Air Act, merely invoking state law labels cannot turn production, sale, promotion, and use of fossil fuels into state liability events.”
• “State courts are simply not positioned to be arbiters of who, if anyone, is to be legally accountable for global climate change. It is not the role of any state court to impose emission caps or effectively tax other states’ citizens for their own gain.”
• “Ultimately, amicus believes the best way to address the impact such energy use is having on the climate is for Congress, federal agencies, and local governments to work with manufacturers and other businesses on developing public policies and technologies that can reduce emissions and mitigate damages.”
• “The challenge facing society is to affordably and reliably provide this energy while mitigating its climate impacts, not to artfully plead lawsuits.”

Numerous other parties filed amicus briefs, signaling the major importance of the issues in this case.