If a beach erodes in Honolulu, can a company be sued for producing oil in Holland? And under Hawaii state laws to boot?
That’s the claim Hawaii’s capital city is making in a “public nuisance” lawsuit (Sunoco v. City &County of Honolulu) against international oil companies. It’s part of an organized legal strategy by Democrat-controlled cities and states hoping to use state and local laws and litigation to force changes in energy policy.
Sunoco and other energy companies want the lawsuits tossed, arguing that energy policy is set by Congress at the federal level, not municipal lawsuits under state and local laws. In 2011, Justice Ruth Bader Ginsburg penned an 8-0 U.S. Supreme Court decision saying Congress retains the power to regulate, and the courts are not free to hear public nuisance claims under a general common-law theory.
“It’s very obvious they want to do more on climate change and so this is an end-around for them to try and make climate policy in a way that they can’t or in ways that could potentially harm them,” Kenny Stein, vice president of policy at the Institute for Energy Research (IER) said. “If they really think oil companies are these big bad evils that are costing so much money, well, they should have a carbon tax or have a massive increase in their gas tax. But of course, there’s political ramifications to that because voters would see them raising taxes.”
While energy companies might have preferred to see the case killed, legal sources say the court’s deliberate approach could be a sign the justices are seriously considering the petitioners’ issues and they are treating this like a high-profile case.
“It is important for the U.S. Supreme Court to grant review,” Theodore J. Boutrous Jr. of Gibson, Dunn and Crutcher, counsel for Chevron Corporation, said in response to the court’s request to the Biden administration.
“The Hawaii Supreme Court’s decision flatly contradicts U.S. Supreme Court precedent and federal circuit court decisions, including the Second Circuit which held in dismissing New York City’s similar lawsuit, ‘such a sprawling case is simply beyond the limits of state law.’ These meritless state and local lawsuits violate the federal constitution and interfere with federal energy policy.”