Biden’s Lawfare by Other Means

By John Yoo

Thursday, December 26, 2024

 

President Joe Biden gifted a lump of coal to the families of the victims of the 37 convicted killers whom he pardoned this week. And, on his way out the door, he’s using his power over law enforcement to drop coal lumps also on American industry and the economy — by making energy companies vulnerable to concocted legal theories about their supposed concealment of climate change.

 

Biden’s recent pardons underscore the presidency’s nearly absolute control over federal law enforcement. As the sole officer charged by the Constitution to “take Care that the Laws be faithfully executed,” the president not only sets enforcement priorities and allocates agents, prosecutors, and resources to pursue them, he can also effectively nullify congressional law. With his pardons, for example, President Biden reversed Congress’s decision to make the death penalty available for the worst crimes. With his open border and loose asylum policies, he has countered congressional wishes for an effective immigration policy.

 

A less noticed — but equally profound — dimension of the take care clause vests the president with the power to dictate the position of the United States in civil cases. Represented before the Supreme Court by the Justice Department’s solicitor general, President Biden can advance readings of the Constitution that serve his political agenda. The solicitor general enjoys an enviable, long-term average win rate of about 67 percent at the Court. (The position is so influential that it is sometimes referred to as “the tenth justice.”) But Biden has sacrificed this power in his attempts to score political points. In the last four years, the Supreme Court has rejected Biden’s pleas to preserve a constitutional right to abortion, allow race-based college admissions, narrow the right to carry firearms, and reject broad immunity for former president Trump.

 

This sorry losing record — another aspect of a failed presidency — hasn’t prevented Biden from attempting to misuse this power once again. Last week, the solicitor general filed briefs supporting the right of Hawaii — and a great many blue cities, counties, and states — to sue energy companies. Hawaii claims a right to sue oil companies if they cause what it liberally defines as a “public nuisance.” In the words of the Hawaii supreme court, which allowed the lawsuit, oil and gas companies knowingly “concealed and misrepresented” the climate effects of their products and engaged in “disinformation campaigns” to raise doubts about global warming. Honolulu claims, further, that this deception led to an increase in fuel consumption and greenhouse gas emissions and therefore “caused property and infrastructure damage in Honolulu.”

 

The U.S. Supreme Court is poised to reverse this blue-state legal shakedown. Last spring, it received petitions from the energy company defendants, as well as from Alabama and other energy producing states, to reverse the Hawaii supreme court’s decision. As it often does, the Court asked the solicitor general for her views on whether to grant certiorari and hear the case. But Biden’s Justice Department delayed its response until December, no doubt waiting until after the election to protect Vice President Kamala Harris’s campaign from more anti-energy accusations. Biden now argues that the Supreme Court should allow Hawaii and other states to continue to abuse their legal systems to impose crippling verdicts on the energy industry.

 

It seems obvious that the Supreme Court should review Hawaii’s decision now. The defects in Honolulu’s lawsuit are legion. As the Supreme Court recognized in American Electric Power v. Connecticut (2011), greenhouse gases and their impact on temperatures are not localized. “Greenhouse gases once emitted ‘become well mixed in the atmosphere,” the Court observed. “Emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China.” Emissions rapidly intermix with other gases in the atmosphere to exert a cumulative effect on the environment. Necessarily and immediately, greenhouse gas emissions have profound national effects, which therefore require coordinated national solutions. With liberal justice Ruth Bader Ginsburg writing the majority opinion, the Court in AEP sensibly concluded that the federal government, and not the states, should regulate greenhouse gas emissions.

 

To evade this reasonable understanding of national power, Honolulu and other blue cities and counties contrived a novel theory of liability. Instead of simple pollution, energy companies are guilty only of “the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation campaign,” according to the Hawaii supreme court. In other words, they’re allegedly at fault because they have failed to notify consumers of fossil fuel that the products create greenhouse gas emissions which then cause global warming. Hawaii has imposed a theory of liability so broad that it would allow Honolulu — or any other city or state that adopts it — to drag into its courts any company or individual involved in the production or distribution of fossil fuels anywhere in the world. The Hawaii supreme court could subject these defendants to billions of dollars in verdicts — even as Honolulu has not yet charged other consumers and businesses who also use fossil fuels. Hawaii’s theory, for example, should also fault everyone who drives a gas-powered motor vehicle (such as the little wikiwiki tourist buses), uses electricity from oil- and gas-powered power plants (such as the grills at Rick’s Hawaiian), or sells goods involving plastic (like almost everything at ABC Stores).

 

Honolulu makes no allegation that fossil fuel consumed in Hawaii was marketed via claims that the production and use of fossil fuels carries no or little danger to the environment. Rather, oil and gas companies claimed without contradiction that their fossil fuels could improve gas mileage, reduce engine wear, or even reduce the emission of harmful substances such as nitrous acid and sulfur dioxide. These statements cannot be treated as a form of misinformation because they are all true. Indeed, each of these statements improves the operation of a competitive market, which only produces positive benefits nationwide.

 

Hawaii’s shenanigans directly assault federal interests. Following its example, states could punish out-of-state companies for temperature changes brought about by a truly national — indeed international — weather dynamic. Energy producing states would likely respond with retaliatory measures against blue states, disrupting the national energy market. Moreover, if Honolulu gets away with such a lawsuit, states could be encouraged to concoct similarly unlimited theories of tort liability that interfere with the nation’s ability to pursue coherent policies on energy and climate change. The Framers gave the federal government the right to regulate “Commerce among the several States” exactly to bring uniform regulation to matters that affect the nation as a whole. As the Supreme Court recognized a half century ago, interstate pollution presents an “overriding . . . need for a uniform rule of decision,” because states have conflicting interests, energy production and pollution are nationwide in scope, and the basic interests of federalism are involved.

 

The nation’s interest in the energy industry goes beyond merely preventing interstate legal fights. The energy industry employs more than 8 million Americans and accounts for more than $1.3 trillion in annual economic activity. There are more than 11,000 utility-scale power plants located in every state that deliver electricity to the nation’s power grid. Controlling energy has long been an important national security goal that supports not only economic independence and stability but also U.S. diplomacy and military capabilities. If the Supreme Court allowed Hawaii to continue on its merry way, the state’s regulatory efforts could have unintended nationwide or global effects.

 

Our Constitution also requires state interests to give way when the federal government’s control over foreign relations is concerned. The Supreme Court, for example, preempts state laws that might interfere with foreign policy, even in the absence of a relevant treaty. For example, it has struck down a Massachusetts law that would have imposed economic sanctions on Burma as well as a California law that would have interfered with President Clinton’s negotiation of an agreement to settle claims between Holocaust survivors and German financial institutions. Foreign policy interests of equal or greater importance are present in these air pollution cases. The executive branch has entered into international agreements designed to regulate greenhouse gas emissions and continues to participate in negotiations for further international cooperation. Hawaii and other states attempt to impose damages on energy companies for the very conduct, based on the same theory of harm, that is the focus of these national diplomatic efforts.

 

The fecklessness of the Biden administration is such that it would allow blue states to set American foreign policy rather than advance a truly unified, national approach to climate change. Fortunately, Biden’s complete failure of leadership comes at the end of his term, after which President Trump can quickly reverse course. As he works to open more lands to exploration and accelerate new energy project approvals, Trump should instruct a new solicitor general to urge the Supreme Court to review these blue-state legal shakedowns. He should order the Justice Department to demand that state and federal judges suppress the mushrooming lawsuits based on Hawaii’s nuisance theory. Ultimately, he should work with Congress to place American energy and environmental policy on a more solid footing, one that recognizes the proper roles of the federal and state governments.