Trump DOJ Files Amicus Brief Against Annapolis and Baltimore Over Climate Lawfare, Making Case for Others, Too
Great analysis by Tom Shepstone in "Energy Security and Freedom"
Tom Shepstone, a longtime friend and colleague going back to the early days of shale gas development in the US, wrote a great article about the Trump Administration’s current efforts to quash a wave of ridiculous lawsuits against oil and gas companies in Maryland and other states. These lawsuits are a variation of the “Exxon Knew” campaign, which alleged that Exxon knew its production of oil and gas contributed to climate change and is therefore responsible for the costs of climate-related events, such as floods and heatwaves.
The current round of lawsuits targets all oil and gas companies. The lawsuits attempt to hold all fossil fuel companies financially responsible for the damage caused by weather events. As ridiculous as that seems, their goal, as Tom points out, is not necessarily to win but to “harass, delay, and add to the cost of oil and gas development to help advance solar and wind grifting opportunities, while hating on Western Civilization.”
The Trump Administration’s Department of Justice and EPA decided to put an end to this harassment by intervening in these lawsuits. Tom describes the recent actions taken by the Department of Justice in Maryland:
Climate lawfare has embroiled many jurisdictions, hustled by a combination of NGOs and greedy trial lawyers. Among them are the Cities of Annapolis, Baltimore, and Anne Arundel County in Maryland. My daughter and her family live in Anne Arundel County, and they often bemoan the political correctness that has replaced intelligent decision-making in their area.
But, now they’re getting support from other states and, especially, under Trump, from our U.S. Department of Justice. The DOJ has filed a particularly good amicus brief in the case, in fact, and that brief also happens to ay out one of the strongest arguments against fracking bans by entities such as the Delaware River Basin Commission.
The matter addressed by the brief is nicely summarized in the brief (emphasis added and citations deleted):
Plaintiffs filed these lawsuits against energy producers that extract, refine, and market fossil fuel products across the globe.
They allege Maryland state law claims for public and private nuisance, strict liability and negligent failure to warn, and trespass. Plaintiffs are not alone in their effort to obtain monetary damages from fossil fuel producers— there are many similar lawsuits pending across the country.
According to Plaintiffs’ complaints, based on the total volume of fossil fuels that the producers have extracted over the past half-century, the producers are responsible for an increase in the overall amount of greenhouse gases in the atmosphere, which is in turn responsible for an increase in the temperature of the Earth, which is in turn responsible for localized weather harms in Baltimore and Anne Arundel.
The producers, as Plaintiffs see it, concealed from the world that greenhouse gas emissions warm the planet and should have taken steps to limit those emissions, reduce the use of fossil fuels, and help transition the world economy to other (more expensive, less efficient) types of fuel, such as wind and solar.
This conduct allegedly injures Plaintiffs because greenhouse gases emitted worldwide accumulate in the atmosphere and disrupt Earth’s delicate climate—exacerbating flooding and storms, raising sea levels, bringing heat waves, and motivating Plaintiffs to invest in climate adaptation measures.
The circuit courts dismissed Plaintiffs’ claims as preempted and precluded by federal law. These appeals followed.
The Plaintiffs’ arguments are silly on their face, of course, but winning is not the point for them. It’s all about harrassment, delay, and adding to the cost of oil and gas development so as to help advance solar and wind grifting opportunities, while hating on Western Civilization.
The amicus brief by DOJ lays out the legal rationale for why allowing this climate lawfare to go forward would be a travesty. It’s all about the role of the Feds, who already regulate both air (the Clean Air Act or CAA) and water (Clean Water Act or CWA) pollution:
The Supremacy Clause makes the Constitution and federal statutes “the supreme Law of the Land.” . . . Federal statutes preempt state law where Congress determines a field must be exclusively governed by federal law.
That intent “can be inferred from a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it.”
The CAA preempts state law claims like Plaintiffs’ claims here—those that effectively regulate out-of-state greenhouse gas emissions because of their alleged effects on the global climate. The CAA occupies the field of interstate air pollution, and Plaintiffs’ state tort claims conflict with the text, structure, and objectives of the CAA’s comprehensive regulatory framework.
As an initial matter, the field of interstate pollution control has long been a matter for “federal, not state, law.” Indeed, “[f]or over a century, a mostly unbroken string of cases has applied federal law”—initially, federal common law—“to disputes involving interstate air or water pollution.”
The Clean Water Act (CWA) displaced the federal common law of transboundary water pollution, and the CAA did the same for transboundary air pollution, including with respect to greenhouse gas emissions. Accordingly, “federal legislation now occupie[s] the field” and determines what role, if any, there is for state law in these areas.
Even without this history, the CAA sets out detailed source- and pollutant- specific control programs for nationwide air regulation. The statute grants EPA authority to establish nationwide standards based on its expert judgment when EPA determines that emissions from, for example, stationary sources under 42 U.S.C.§ 7411 and new motor vehicles under § 7521 meet the applicable statutory standard for regulation.
In short, it is a “comprehensive statutory scheme that anoints the EPA as the ‘primary regulator of [domestic] greenhouse gas emissions,’”
The statute carefully defines a role for states, including the SIP process where states implement EPA-promulgated standards as to in-state sources. The CAA also expressly addresses “[i]nternational air pollution” by creating a mechanism for EPA to reduce domestic emissions’ impacts in other countries under certain circumstances. 42 U.S.C. § 7415. This “extensive coverage allows regulators with expertise . . . to create empirically-based emissions standards.”
Nothing in Congress’s scheme authorizes claims like Plaintiffs’ claims, deeming unacceptable under Maryland law the amount of greenhouse gases emitted across the country and the world over the past fifty years. The CAA specifically addresses the problem of “air pollution emitted in one State, but causing harm in other States . . .
As this scheme makes plain, each state is alone responsible for controlling air pollution within its borders— subject to EPA oversight—and the statute contemplates no role for states reaching out and applying their law in other states.
The Supreme Court’s analysis in Ouellette is dispositive. Ouellette held that the CWA preempted Vermont’s nuisance suit under Vermont law for harms experienced in Vermont, but caused by New York-sourced pollution. Relying on the CWA’s “comprehensive” and “pervasive regulation” of water pollution, as well as “the fact that the control of interstate pollution is primarily a matter of federal law,” the Court framed the inquiry as whether the CWA “specifically preserved” the application of state law to water pollution that originated in another state.
The Court answered no, holding that the statute “contemplate[d] a much lesser role” for states seeking to regulate out-of-state pollution, and precluded “applying the law of an affected State” to impose liability on “an out-of-state source.”. Crucially, the Court interpreted the statute’s savings clause—which permits states to adopt and enforce stricter standards than required by the CWA, to permit liability under state law only if “pursuant to the law of the source [s]tate.”
A contrary rule, the Court reasoned, would “subject [regulated entities] to an indeterminate number of potential [state] regulations, undermine the important goals of efficiency and predictability in the [EPA’s] permit system,” and “undermine” the statute’s comprehensive “regulatory structure.”
So too here. Like the CWA as to interstate water pollution, the CAA is a comprehensive statute governing interstate air pollution, which has been historically governed by federal law to an even greater extent. The CAA has a savings clause materially identical to the clause at issue in Ouellette, which the Court interpreted as authorizing only state regulation “pursuant to the law of the source [s]tate. (finding “no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of [the] preemption analysis”).
And, as in Ouellette, Plaintiffs’ claims target out-of-state emissions and thus undermine the CAA’s regulatory structure and purpose. Plaintiffs seek sweeping global relief—including abatement, punitive damages, compensatory damages, and disgorgement of profits traceable to the worldwide extraction, production, and consumption of fossil fuels.
But the CAA entrusts “complex balancing” of the Nation’s energy and clean-air needs “to EPA in the first instance, in combination with state regulators.” It envisions cooperation between the states and the federal government under a carefully defined regulatory program of cooperative federalism. By applying Maryland tort standards to redress harms that Plaintiffs admittedly attribute to out-of-state emissions, they assume for themselves EPA’s discretion to determine whether regulation is appropriate and, if so, to set nationally applicable standards, along with other states’ authority over emissions within their borders.
Such attempts intrude on EPA’s authority as the “primary regulator of greenhouse gas emissions” and to determine whether and how to regulate with the tools that Congress provided. . .
The claims also impose collective liability for greenhouse gas effects from any and all emissions attributable to the producers’ products, regardless of the type of emitting source, despite Congress’s careful differentiation between types of emitters (e.g., stationary or mobile), the standard for regulation, and the permissible forms of emission limitations when appropriate.
The key points made here are:
The Feds have pre-empted air and water pollution regulation by the states and, presumably, river basin commissions as well. The states and regional agencies can only work within the framework of Federal regulation.
The regulations must also be tailored to discharge and emissions standards. No one is authorized by the CAA or CWA to prohibit a process, practice, industry or land use that can meet those standards.
No state or agency, other than the EPA ,gets to set standards for pollution outsife its borders, which is precisely what the Maryland municipalities propose to do, albeit indirectly. This is also what the DRBC is doing by imposing alternative standards that have no relationship to the CWA whatsoever, but rather aim to deny a land use on the basis of a vague set of assumptions that amount to nothing more than saying fracking is bad and no one shall be permitted to demonstrate otherwise by meeting EPA standard.
The DOJ amicus brief strikes a very hard blow against the scourge of rule by speculation and lawfare. I look forward to the DOJ fighting other battles.
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Thank you so much for sharing this, Ed!