America’s Interests and the Honolulu Climate Case Before the U.S. Supreme Court—Does Watt Agree?

Benjamin Zichel

The Office of the Solicitor General (part of the Ministry of Justice) was established by the Statutory Enabling Act of 22 June 1870. The Attorney General performs his duties. “OSG’s mission is to represent the interests of the United States before the Supreme Court and to oversee appeals and certain other proceedings on behalf of the United States in lower federal and state courts.”

The term “U.S. interests” is not defined in the bill, and it is clear that any government has the right not to define it in order to keep its options open regarding future positions on legal issues that arise. Who can believe that the political interests of a certain administration will not affect its stance on “American interests”? These positions may be entirely inconsistent with the interests of the U.S. economy, citizens, taxpayers, or any number of other groups that may be classified under the heading “American interests” as distinct from the political interests of the current administration.

Which brings us to the climate case the U.S. Supreme Court will soon decide whether to grant certiorari: Sunoco LP ET. AL. v City and County of Honolulu, Hawaii. AL. In a nutshell: The city and county of Honolulu sued energy producers for — don’t laugh — intentionally causing the alleged climate crisis, and won a ruling in the Hawaii Supreme Court to the effect that federal law cannot preempt State/Local Legal Actions. As a result, the Hawaii Supreme Court directed the Honolulu lawsuit to proceed in state court under Hawaii state law rather than federal law, despite several contrary rulings by federal courts holding that claims arising from greenhouse gas emissions fall within the purview of federal law and Congress.

OSG has been amicus curiaeBut it’s worth noting that nowhere in its briefing does the OSG tell us what “the interests of the United States” are in this case. Instead, OSG's brief simply asserts that “the petition for certiorari should be denied” because “resolution of the federal question 'may await final judgment' before this Court.” [after the case works its way through the Hawaii and federal courts] There will be no adverse impact on important federal interests.

The OSG adopted this position despite acknowledging (page 12) that “Petitioners may ultimately prevail on their argument that defendants’ claims are prohibited by the Constitution—specifically, the Interstate and Foreign Commerce Clauses, the Due Process Clause, and Federal Constitutional Structure—Based on claims based on conduct that occurred outside Hawaii, OSG cites a precedent to the effect that “principles of state sovereignty and comity” mean that “a state may not seek to alter the lawful conduct of an offender in another state.” The purpose is to impose financial sanctions on those who violate its laws. “No one is claiming that fossil producers’ normal business activities – the production and sale of fossil fuels – are illegal.

OSG also doesn’t think – any such argument would pass the laugh test – “wait”[ting] The final verdict will not impose huge costs on fossil producers and the economy as a whole. Instead, the OSG implicitly held that lawsuits inconsistent with the “Interstate and Foreign Commerce Clause, the Due Process Clause, and the structure of the federal Constitution” would not affect “the interests of the United States.” Seriously?

Put these constitutional questions aside. Doesn’t “American interests” include national energy policy and total fuel costs, employment, the impact of the Hawaii incident and similar lawsuits on the nation’s wealth, U.S. international trade flows, and many other major parameters of the U.S. economy? Do they not include forcing the replacement of one set of environmental impacts caused by the use of fossil fuels with another set of environmental impacts caused by existing alternatives? As energy costs rise sharply but unevenly across the country, don't “America's interests” include the massive economic shifts and disruptions that will result? ETC.

The Supreme Court should issue a writ of certiorari in this case. There are clear conflicts between several federal court decisions, particularly the Second Circuit's 2021 dismissal of a nearly identical lawsuit by New York City and the Hawaii Supreme Court's decision. Both court rulings shed light on conflicts over whether federal law precludes claims under state law and whether a particular state can apply its laws to address injuries allegedly caused by emissions from another state. Moreover, the Hawaii Supreme Court's decision is patently incorrect: interstate emissions, international emissions, and negotiations with foreign governments are essentially issues for the federal government to address.

Back to OSG a friend Synopsis: This is a purely political document that reflects the Biden administration's efforts to force the use of expensive and unreliable unconventional energy sources to replace fossil fuels that have proven competitive for more than a century. Despite the various claims made within it, the OSG's brief statement had nothing to do with arguments about “American interests.” In this case, the grant of certiorari would implicitly send a signal that OSG's arguments are poor and that future such briefings by OSG should substitute rigor for political posturing. This alone would provide a real service to America's real interests

Benjamin Zycher is a senior fellow at the American Enterprise Institute.

This article was originally published by RealClearEnergy and provided via RealClearWire.

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