Climate lawfare’s back-channel campaign, and how you’ll pay the bill

In The Federalist No.78, Alexander Hamilton famouslypromisedthat the federal judiciary would have “neither FORCE nor WILL, but merely judgment.” The climate lawfare movement has spent the better part of a decade trying to prove Hamilton wrong.

Earlier this month, the Supreme Court heard oral argument in Suncor Energy v.County Commissioners of Boulder County, in which Boulder seeks to use Colorado public nuisance law to make two energy companies pay for the effects of global climate change.

The case is the culmination of a long campaign.

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A small, well-funded network of climate activists, convinced that drastic action is needed to save the planet and frustrated that their fellow citizens have not voted to dismantle the fossil-fuel industry, have turned to state and local courts after the Supreme Court unanimously shut down federal climate-nuisance suits in 2011’sAmerican Electric Power v.Connecticut.Their strategy rests on a single premise: When the front door of democracy is closed, try the courthouse back door.

But thanks todocumentsreleased September 30 by the House Judiciary Committee, we no longer have to guess.One of the movement’s architects put the strategy in writing.

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“It seemed to me that without legislative or executive action to address the climate problem, real government action might still be derived from court decisions,” Paul Hanle wrote in a May 2022 email.Hanle founded the Environmental Law Institute’sClimate Judiciary Project, which has put at least 140 federal judges through its climate “education” seminars.In the same email, he laid out CJP’s strategy to target “key judges” with seminars, hoping to “make a great difference in the final outcome of cases.”

The crown jewel was the judges’ own science manual.In December 2022, the National Academies of Sciences, Engineering, and Medicine invited Michael Burger to write the climate chapter of the Reference Manual on Scientific Evidence, the federal judiciary’s go-to science guide.Burger runs Columbia’s Sabin Center for Climate Change Law and is of counsel at Sher Edling, a firm representing many of the cities and counties suing oil companies.The Federal Judicial Center balked, citing his litigation work.

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The next day, Burger told his Sabin Center colleagues, the chapter’s eventual named authors, that he’d “be happy to contribute behind the scenes.” Within weeks, one of them was circulating a draft with “Mike’s edits” and revising the legal section in response to his comments.Soon after the manual was published, the FJC withdrew the climate chapter.TheNational Academiesfinally followed suit in August.

Why all the stealth?Because climate plaintiffs have a causation problem they cannot solve in the open.

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At theSuncor Energy oral argument, Justice Elena Kagantoldthe oil companies’ lawyer, “Well, you sound like you have a very good causation argument.” She meant it as a brush-off;she immediately questioned why causation should matter for preemption.

But Kagan is right: No climate plaintiff has a good causation argument.Greenhouse gases mix globally, and about 90 percent of emissions occur outside the United States.Tying a drought in Boulder to any particular company’s barrels of oil is simply not possible.

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That is why the climate lawfare movement needs judges to swallow “extreme event attribution.” Boulder’s trial court has already shown what the endgame looks like,declaring,“in a multiple contributor tort case, there is no need to tie specific injuries to the actions of defendants.” If you can’t meet the standard, lower it.

This is precisely what the Constitution’s structure exists to prevent: a small minority weaponizing federalism to impose its policy preferences on the entire nation.One county cannot regulate the world.If Boulder prevails, the companies’ lawyer warned, some 90,000 municipalities could make national energy policy through jury awards.Pressed by Justice Clarence Thomas at oral argument, Boulder’s lawyer conceded that “nothing in our theory” prevents suing retailers too.

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And it won’t stop with oil companies.The Climate Judiciary Project’s own curriculum for judges shows where this is headed.Onemoduletouts “source attribution” studies tracing nearly two-thirds of all carbon dioxide emitted since the 1750s to 90 fossil-fuel and cement producers.Then it turns to the dinner table: “Though its members have not yet been named as defendants in climate change lawsuits, the heavily concentrated industrial animal agriculture industry also has been subjected to source attribution analysis.” Note the word “yet.”

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The module is candid about the point of the exercise.These studies take an alleged problem that could be attributed to “several billion past and present human individuals” and reduce it “to one driven by a few dozen companies,” which makes climate change “appear to be more amenable to traditional tort law adjudication.” This is regulation by litigation, pure and simple.Punish the companies that supply Americans’ fuel, food and building materials, and every family pays the bill at the pump and the grocery store. 

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Chief Justice John Robertscut to the heart of the matter: “Isn’t your suit an attempt to evade those decisions?” He meant the Court’s long line of cases treating interstate air pollution as a matter of federal law, which Justice Brett Kavanaugh had called “a wall of precedent.” Kavanaugh then read aloud from Justice Ruth Bader Ginsburg’sopinionin AEP: Federal judges “lack the scientific, economic, and technological resources” to set emissions policy.If that is true of federal judges, Kavanaugh asked, doesn’t it apply to “a six-person state jury in Boulder?”

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Take it from Ginsburg herself.Greenhouse-gas regulation, she wrote, “cannot be prescribed in a vacuum.” It demands weighing environmental benefits against “our Nation’s energy needs and the possibility of economic disruption.”

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Theclimate lawfare complexlost at the ballot box.It lost in AEP.So its backers went behind the scenes—into judicial seminars and judges’ own science manual.Enough already.The Supreme Court should shut the courthouse door for good.

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