Commentary: Court should toss Charleston’s climate change lawsuit

The city of Charleston is trying to commandeer national energy policy via a state court climate change lawsuit that would radically alter the quality of life South Carolinians and all Americans enjoy.

The city’s lawsuit, which targets everyone from South Carolina distributor Brabham Oil to major industry players, is one of about 30 copycat suits states and cities around the country have filed in recent years. The end goal of this coordinated campaign — the plaintiffs share San Francisco trial lawyers and strategies — is to bankrupt American energy companies or leverage the threat of damages to galvanize a transition to unworkable alternatives.

One commonality is that the suits seek to extract untold billions of dollars from energy producers, and in many cases are motivated by the need to backfill budget shortfalls. Another common element is the plaintiffs’ claim that by contributing toward worldwide emissions, the energy companies purportedly caused a nuisance in a specific place. If the plaintiffs can get a judge (anywhere) to swallow their “nuisance” theory, the goal is an emissions abatement plan — in other words, a regulatory regime not just for Charleston or South Carolina, but for the whole country. That regime would kneecap the American economy while doing nothing about China’s much higher emissions.

The Founding Fathers anticipated a situation in which one state might attempt to impose its own laws or policies on other states. They were concerned from the beginning that one state would exploit its prestige or economic might to dominate the others. A cornerstone of federalism, the Constitution’s equal-sovereignty principle — much discussed in The Federalist Papers No. 80 and affirmed in the U.S. Supreme Court’s Shelby County v. Holder decision — prohibits unwarranted intrusions into a state’s sovereignty. Thus, neither a lone judge sitting in Charleston nor the other branches of state government may dictate energy policies beyond state borders.

The courtroom is not, of course, the proper venue for setting energy policies. The U.S. Second Circuit Court of Appeals recognized as much in a decision dismissing New York’s similar lawsuit. As that court explained, energy policy implicates uniquely federal concerns. For instance, the government needs access to abundant energy to protect national security. And judges dictating energy policy from the bench hamstring the president’s ability to conduct foreign policy on energy and climate issues. 

What’s more, when judges usurp the authority of Congress or state legislatures, they deny voters the ability to govern themselves through their representatives. And the anti-energy agenda behind the plaintiffs’ lawsuit is so wildly unpopular that it would never be approved by voters of South Carolina. Beyond their monetary designs, the plaintiffs have an obvious ideological pursuit: denying access to oil and natural gas to force higher-priced and lower-reliability solar and wind on consumers.

If the plaintiffs were to prevail, South Carolinians would pay much more to fuel their vehicles and cool their homes. Meanwhile, China will continue emitting far more greenhouse gases. Left unchecked, nuisance lawsuits will be targeted at other industries too, placing these industries’ continued existence in jeopardy. In fact, progressive activists are already waging the same lawfare strategy against firearms, beef and other popular products.

Charleston’s climate case has so many defects that, last fall, S.C. Attorney General Alan Wilson urged that it be tossed out of court and noted that it threatens to “impair state sovereignty.” In so doing, he joined a coalition of other state attorneys general who have criticized climate lawsuits for impairing the ability of their states to pursue their own energy policies. Judges have now dismissed similar lawsuits in San Francisco, Delaware, Baltimore, New Jersey and New York. South Carolina’s courts should likewise put an end to this meritless case.

Christopher Mills is a constitutional lawyer at Spero Law in Charleston.