GOP state AGs press Supreme Court to take up Hawaii climate change case they say is 'grave threat'

FIRST ON FOX — A group of nearly two-dozen Republican attorneys general is asking the Supreme Court to intervene in a climate change liability case out of Hawaii they say could have "grave" consequences for American energy production.

In February, a coalition of major oil companies asked the Supreme Court to weigh in on the city of Honolulu’s lawsuit that accused the companies of deceiving the public about their role in causing global warming, which could in turn cost the companies billions in damages. 

Led by Alabama Attorney General Steve Marshall, 20 states on Monday filed an amicus brief asking the high court to review the case, arguing that the lawsuit, and several others like it percolating in the lower courts, is "an affront to the equal sovereignty" of their states and an attempt by one state to use its own laws to impose its energy policies nationwide.

"The grave threat these suits pose to equal sovereignty and our Nation’s energy infrastructure are reason enough for this Court to grant review," the filing states.

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In 2020, the city of Honolulu sued several major fossil fuel companies, including Exxon and Chevron, claiming the companies’ products cause greenhouse gas emissions and global warming without warning consumers about the risks. 

The city employed a series of state laws like public nuisance and trespass measures and said the companies should pay billions to the state to abate the effects of climate change like weather events, sea level rise, heat waves, flooding, and global warming generally. 

The energy companies appealed to the Hawaii Supreme Court, arguing that federal law prevents individual states from effectively shaping energy policies for all states, but that court disagreed.

"The time for this Court’s intervention is now," the AGs wrote in their brief, adding that "reducing the sale and use of traditional energy everywhere is not among a State’s constitutional powers."

They say the case presents a "unique opportunity" because Hawaii courts granted a rare appeal option and stayed most of the discovery in the case while parties went through the appeals process. 

"The Court should act before state courts issue preliminary relief that could trigger a national emergency or fashion a patchwork of new taxes on the Nation’s energy system that would make life harder for every American," the AGs wrote. 

In an interview with Fox News Digital, Marshall said the lawsuit is "an effort by environmentalists to control energy policy in this country."

"They're attempting to do it through friendly forums, in this case, state court in Hawaii. And the people of Alabama absolutely object to a state court judge in Hawaii ultimately determining how it is that we deal with the fossil fuel industry here in this country," he said. 

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"What we see here is the use of a damages verdict to either change the behavior of fossil fuel companies or exponentially increase the cost of energy to the citizens of the United States," Marshall said. 

The attorneys general argue – and cite America’s rich state-sovereignty precedent – that federal common law already says disputes relating to cross-border pollution ought to be decided by federal courts, not states.

They also cite the Clean Air Act, which they argue still lets states have certain powers to regulate emissions notwithstanding federal intervention.

The Clean Air Act recognizes "the primary responsibility" of states to prevent and control "air pollution … at its source."

"The statutory scheme exemplifies cooperative federalism, permitting States to implement their own regulations consistent with a federal baseline," the AGs write in their brief. 

"As a result, our federal system allows States to pursue divergent policies with respect to energy production and environmental protection." 

"You don't want to allow states like Hawaii or California to define energy policy for the entire country. But they're using the threat of a massive jury verdict to be able to bankrupt the fossil fuel industry," Marshall told Fox News Digital.

"And that's not good for the citizens of Alabama. It's not good for providing affordable energy and available energy to the people of this country," he said.

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"Although a case nestled in the state of Hawaii, a long way from us here in Alabama, it's critically important for us to be engaged. And in fact, critically important for the Supreme Court, ultimately to help decide this issue," he said.

The AGs said in the brief that the "theory used against energy companies can be expanded to allow targeting of any cross-border activity that purportedly ‘exacerbate[s] the impacts of climate change.’" 

One example they point to happened just a few weeks ago, when the state of New York sued "the world’s largest producer of beef products, for misleading the public about its environmental impact."

The beef producer’s stated commitment to reach "Net Zero by 2040" is allegedly misleading because the company "plans to grow global demand for its product" rather than "reduce production of and demand for" it. The company’s emissions "of greenhouse gases to the atmosphere and … supply chain practices" purportedly "contribut[e] to climate change harms."

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"New York’s complaint alleges that ‘the world’s top five meat and dairy corporations combined are responsible for more annual greenhouse gas emissions than ExxonMobil, Shell, or BP, individually.’ Surely in some State’s view, those companies too (and countless others) have ‘exacerbated the impacts of climate change,’" the AG’s brief states.

"But the States, upon entering the Union, gave up the right to use their laws for this sort of interstate conflict. The Court should grant review here before any further damage is done to our national economy and our federal scheme," it concludes. 

Honolulu is expected to file its response on May 1, with a final brief scheduled on May 15. A decision from the Supreme Court on whether it will review the case could come in June.

Fox News Digital reached out to the city and county of Honolulu for a response to the amicus brief.