Biden’s Parting Shot At Energy Companies Won’t Tie Trump’s Hands

The Biden administration dealt a blow to energy producers by arguing Wednesday that the Supreme Court should not intervene in ongoing legal assaults against energy companies across the country, but legal experts say that the recent filings will not meaningfully impede the Trump administration from taking a different course.

Solicitor General Elizabeth Prelogar wrote in Wednesday filings that the Biden administration believes it is inappropriate for the Supreme Court to intervene in state or municipal lawsuits against energy producers seeking to make those companies fork over billions of dollars to compensate for their purported roles in causing climate change. While the outgoing Biden administration sided with the Democrat jurisdictions bringing these suits, Prelogar’s filings will not get in the Trump administration’s way, legal experts told the Daily Caller News Foundation.

Specifically, one briefing urged the highest court in the land to reject oil companies’ appeal against the Hawaii Supreme Court’s decision to allow the city of Honolulu to sue the corporations, while the other called on the Supreme Court to block a legal effort by 19 red states to prevent Democrat-controlled jurisdictions from going after energy producers in similar fashion. In its final days, the Biden administration expressed its preference to see these cases play out, but President-elect Donald Trump has vowed to block what he describes as a “wave of frivolous litigation from environmental extremists,” according to E&E News.

“I doubt the Biden filing will have any impact. The Trump administration will likely withdraw it and file its own brief,” Steve Milloy, a senior legal fellow for the Energy and Environmental Legal Institute, told the DCNF. “These lawsuits should be barred from federal court since climate is inherently a political question that should be settled by elected officials versus courts.”

Critics of the climate litigation trend like Milloy contend that Democrats are essentially using the lawsuits to force their own political agenda onto energy companies in ways that cannot realistically be done via the legislature, and that different rulings on cases brought in different states could result in a patchwork regulatory framework that undermines energy production and federalism. In order to prevent that disjointed regulatory landscape, proponents of Supreme Court intervention believe that the court should step in and arrive at a ruling that settles the national question of whether energy companies can be held liable for climate change via the judiciary.

OH Skinner, an attorney and executive director of the Alliance for Consumers, noted that “it’s unsurprising to see the Biden Department of Justice line up on the side of trial lawyers at the Supreme Court” with these filings given that trial lawyers are a key source of “political money” for the Democratic Party.

Devin Watkins, an attorney for the Competitive Enterprise Institute, said he doubts that the recent filings will meaningfully impede the incoming Trump administration.

“If this is still before the court by the time the new administration gets in, then the new administration can just notify the court that they’ve had a change of position. But my guess is this case is not going to be before the court at that time. I suspect the Supreme Court is probably going to dismiss this case,” Watkins said, referencing the brief pertaining to the 19 red states looking to block Democrat-controlled jurisdictions from suing energy producers.

However, Watkins said he thinks it is highly likely that the Supreme Court will eventually get involved in climate cases currently playing out in lower courts across the U.S.

“No doubt, I think these state lawsuits against oil companies are going to get to the Supreme Court. I doubt this is going to be the vehicle where it gets there,” Watkins told the DCNF. “It’s likely going to be that one of these state courts, after being affirmed, they’ll find liability against one of these oil and gas companies. It’ll be affirmed by a state Supreme Court, and then the Supreme Court will take it up on appeal. I have little doubt that the Supreme Court is going to take it up on appeal eventually.”

“The Biden administration on multiple occasions withdrew briefs by the Trump administration, saying they didn’t represent the current views,” Richard Epstein, a law professor at New York University who has filed an amicus brief in the Honolulu lawsuit, told the DCNF. “In this case, they’re not litigants. They are essentially giving an advisory opinion. They’re giving an advisory opinion at the request of the Supreme Court about how to treat a very high issue, and the Supreme Court doesn’t have to follow it anyhow. The opinion was actually pretty weak.”