After many years, dozens of identical cases, and hearings at different levels of the state and federal courts, the U.S. Supreme Court is considering whether to hear a climate lawsuit—this one from Honolulu. The questions presented in the petitions for certiorari concern whether federal or state laws should guide the case’s claims. In June, the Supreme Court invited the U.S. Solicitor General to submit an amicus brief, and that brief was filed on December 10.
The two linked cases—Sunoco v. Honolulu and Shell v. Honolulu—have been distributed for the January 10 conference, which is usually the last conference to determine which cases will be heard in the current term. As the Wall Street Journal editorialized, the Justices should grant review of the case to avoid “a bigger constitutional mess to fix down the road.”
Nine amicus briefs supporting the petitioners have been filed by, among others, Alabama and 19 other states, law professors John Yoo and Richard Epstein, and former Chairmen of the Joint Chiefs of Staff retired General Richard Myers and retired Admiral Michael Mullen. Together, these briefs support the oil companies’ case for why lawsuits seeking damages over global carbon emissions should be governed by federal law. Simply stated, their argument is that one state’s laws should not govern claims arising from actions taken beyond the state’s borders.
In October 2023, the Hawaii Supreme Court unanimously allowed Honolulu’s lawsuit to proceed against energy producers, distinguishing precedent holding that federal law preempts state-law claims for damages allegedly caused by interstate and international greenhouse gas emissions.
The U.S. Supreme Court will, if it grants review, address complicated legal questions of federal preemption of state law in this hotly contested arena. But it is noteworthy that the Hawaii Supreme Court’s ruling—along with similar rulings by other courts—is somewhat clouded by what appears to be political bias and ideological prejudgment.
A group called the Environmental Law Institute (ELI) has a Climate Judiciary Project (CJP) which conducts seminars for judges which take a clear position in favor of climate litigation. For example, one of the modules in CJP’s curriculum for judges assumes the existence of disruptive climate change and advocates for the proposition that it should be remedied by the judiciary. Another module titled “Procedural Techniques Available for Climate Litigation” guides judges on “specialized procedural techniques” that will be “most useful” in climate litigation. Presenters with opposing viewpoints are not invited to these seminars, and CJP clearly states that its goal is to encourage litigation over climate change. Reporting that looked into past CJP events indicates these trainings have reached judges from all federal circuit courts of appeal.
ELI boasts about the number of judges it has trained, including justices on Hawaii’s Supreme Court. Chief Justice Mark Recktenwald has disclosed connections to ELI and the CJP, and he has lectured for ELI on topics such as “What Judges Need to Know About Warming-Driven Sea Level Rise” and “Hurricanes in a Changing Climate and Related Litigation.” Associate Justice Sabrina McKenna has also presented at an ELI program, and in another speech she labeled climate change an “existential threat” and “the most important issue” facing the courts.
It’s unclear whether or how these lectures and affiliations factor into a justice’s decision-making. But judicial codes of conduct make it clear that even the appearance of judicial partiality can be a problem. The U.S. Judicial Conference has noted that
Some observers believe that judges may be influenced inappropriately by those who sponsor or contribute (financially or otherwise) to these seminar programs and who might be litigants before those judges. That influence, it is argued, may be exerted through program content, contact between judges and those who litigate before them, and perquisites provided to program attendees.
While the Supreme Court will address preemption—a technical legal issue that is bound up with our Constitution’s concern for federalism—another constitutional concern that is present in these cases is the separation of powers. Our Constitution assigns political issues to the political branches, assigning to the judiciary only the responsibility for adjudicating legal questions. Political issues like climate change don’t belong in the courts. Instead, elected officials in Congress and the executive branch have the authority to determine climate policy, and to do so on the national and international level necessary to be effective.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].