Global warming lawsuit could hurt OK, other states

LOCAL governments in liberal locales, including places like San Francisco and New York City, have been filing federal lawsuits accusing oil producers of knowingly causing global warming. The lawsuits typically demand damages that would be deposited into reparations funds.

A recent amicus brief filed in one such case, joined by Oklahoma and 14 other states, shows Oklahomans concerned about state finances have good reason to hope these shakedowns are quickly tossed by the courts.

“States have an especially strong interest in this case because the list of potential defendants is limitless,” the brief states. “Plaintiffs’ theory of liability involves nothing more specific than promoting the use of fossil fuels. As utility owners, power plant operators, and generally significant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions.”

Think about that for a minute. The lawsuit targets five specific energy companies, but its repercussions could extend far beyond those businesses. Should liberal cities successfully sue oil companies for supposed global warming harm, they could quickly do the same thing to Oklahoma state government, diverting millions of taxpayer dollars from schools, roads and public safety.

The brief notes that California and the cities of San Francisco and Oakland argue that oil and gas companies “by producing such fuels and promoting their use, have broken the law — but not law enacted by a legislature, promulgated by a government agency, or negotiated by a President. Rather, the law Plaintiffs invoke is common law. They say that Defendants’ production of fossil fuels and the subsequent use of those fuels by third parties sufficiently contributes to global warming as to constitute a ‘public nuisance’ that the federal judiciary should enjoin.”

That theory could be used to justify lawsuits against states like Oklahoma, as well, even though the brief notes California officials are trying to penalize others for activity California government also engages in. Under state law, the California State Oil and Gas Supervisor is charged with encouraging “the wise development of oil and gas resources” and permitting “the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons,” the brief notes.

Fortunately, there are solid legal reasons for courts to reject the municipalities’ arguments. For one thing, the brief points out the U.S. Supreme Court has already ruled the federal Clean Air Act and related Environmental Protection Agency regulations “have displaced the federal common law on which Plaintiffs base their claim in this case …”

Also, if the cities’ lawsuits are successful, the effective result will be to impose “limitations on commerce that takes place wholly outside California’s borders” in violation of constitutional Commerce Clause protections.

Regardless, the states’ amicus brief makes clear that the “deep pockets” being targeted by global warming lawsuits are not just those of large energy companies, but potentially the earnings of taxpayers of all income levels in all states.