Opinion | High energy bills? Blame the trial lawyers.
Liam Donovan is the executive director of America Leads Alliance, a 501(c)(4) dedicated to protecting consumers from climate lawfare.
Who’s to blame for pain at the pump? Americans looking for answers might train their ire on a less-noticed culprit: the campaign to subvert U.S. energy policy through targeted lawsuits.
For years, blue-state attorneys general and private plaintiffs’ lawyers have filed dozens of lawsuits against energy companies, seeking “untold amounts” for the alleged harms of climate change. While many deliberately leave their monetary targets open-ended, one Oregon county alone is suing for $51 billion. New York and Vermont, meanwhile, have passed “climate superfund” laws that would retroactively penalize energy producers for past emissions. Never mind that taxing the companies that heat your home and fuel your car doesn’t merely vanish into the corporate ledger. The price lands on you, the consumer. An independent estimate in 2022 pegged the suits’ penalty at 31 cents per gallon of gasoline for every $100 billion in damages awarded, or roughly $326 per household per year.
This is climate lawfare, the process of using litigation to impose energy policies that haven’t been achieved through the democratic process. None of this has happened by accident. In 2012, a group of activists, plaintiffs’ attorneys and professors convened in La Jolla, California, to map out a litigation strategy against energy producers. The effort followed the anti-tobacco playbook: public nuisance suits would be filed in sympathetic state courts, framed on consumer deception and handled by private lawyers working on lucrative contingency fees.
Yet whereas tobacco litigation concerned a product the government explicitly sought to discourage, climate lawfare targets the energy supply that powers the American economy: the electric grid, the transportation network, agriculture, manufacturing. The people orchestrating it, moreover, know exactly what they’re doing. David Bookbinder, one of the former lead attorneys in the Boulder, Colorado, case against Suncor Energy, publicly described tort liability as “an indirect carbon tax.” He acknowledged that if his side wins, successive jurisdictions would file similar suits. The probable — and desired — result: “Every defendant in all of these cases immediately declares bankruptcy because they have to.”
The financial structure is perhaps more instructive. Even where state attorneys general are nominally involved, the cases are overwhelmingly run through a single firm. Sher Edling, a San Francisco-based litigation boutique, handles more than two-thirds of all such suits in the United States on contingency fees that can reach 25 percent of any recovery. Should even a fraction of these succeed, the attorneys stand to reap sums rivaling the tens of billions trial lawyers collected in the tobacco settlements.
The story, then, isn’t one rogue attorney general or one opportunistic law firm. It is a systematic effort to use state courts to impose what the democratic process won’t deliver. A single favorable ruling in a handpicked jurisdiction can set a precedent that reshapes national energy policy without a vote from a single elected legislator.
Consider Plaquemines Parish, Louisiana: a jurisdiction of some 23,000 people where the local government has a direct financial stake in the outcome, where the lead attorneys reportedly made campaign contributions to the presiding judge and where a joint prosecution agreement stripped the state attorney general of independence over the case. (Last week the Supreme Court unanimously ruled that the suit belongs in federal court.)
The good news is that the legal tide is beginning to turn. State courts have dismissed climate lawsuits in Bucks County, Pennsylvania; New Jersey; Maryland and Delaware. The U.S. Court of Appeals for the 2nd Circuit has ruled that local governments cannot use state law to regulate global emissions. The Supreme Court has agreed to hear the aforementioned Suncor v. Boulder case, which can resolve the jurisdictional question for good.
Congress is joining the fray too. In recent days Sen. Ted Cruz (R-Texas) and Rep. Harriet Hageman (R-Wyoming) have introduced the Stop Climate Shakedowns Act, a bill that would affirm the federal government as the sole regulatory authority over U.S. energy policy as it relates to greenhouse gas emissions. The proposal recognizes that matters of this scope and scale should be decided by national policymakers, not trial lawyers shopping for friendly courtrooms.
Yet unless and until that text becomes law — and the Supreme Court resolves the constitutional matter — the climate lawfare will persist. The financial incentives enticing the practice are too great, and the legal ambiguity sustaining it too strong.
In the meantime, the U.S. energy industry, along with transportation, manufacturing, agriculture and small businesses, will suffer from the shakedown that prioritizes payouts over economic stability. Every family that heats a home, fills a tank or pays an electric bill deserves the relief that the end of government-by-trial-lawyer will provide.