Using litigation to achieve policy ends has become a tried and true tactic in political and advocacy fights. However, in recent years, climate activists have used the courts as a weapon to attack large energy companies — essentially leveraging the legal system as a proxy to win a war of public opinion. Nowhere is this form of “lawfare” more pronounced than in the raft of climate litigation facing energy producers.
In fact, the group of states and municipalities looking to pin financial blame for climate change on energy companies could be reaching a critical turning point. In the near term, President Joe Biden’s solicitor general, Elizabeth Prelogar, will file a brief to the Supreme Court that could offer a position on the jurisdiction under which climate lawsuits should fall: federal or state courts. The opinion could be pivotal in determining whether plaintiffs can use friendly local venues to penalize or seek payouts from those who produce the energy America needs.
However, climate lawsuits are not just about money. Such suits have flowed steadily into America’s courts since 2017, and many impact the future of the energy sources we use to power our economy. The counties, cities, and states filing climate lawsuits are not only attempting to pin down fossil fuel producers for alleged harms but also to leverage America’s state and district courts to diminish their standing in the court of public opinion. Leveraging of the judicial system in the name of politics not only threatens the rule of law, but
