Red states launch ‘Hail Mary’ SCOTUS bid against climate cases

By Lesley Clark | 09/06/2024 06:40 AM EDT

Efforts to convince the high court to take novel lawsuits between states may have begun with a 2014 marijuana case led by then-Oklahoma Attorney General Scott Pruitt.

Alabama Attorney General Steve Marshall walks across the Supreme Court plaza.

Alabama Attorney General Steve Marshall is leading Republican-led states in an unconventional Supreme Court bid to stop climate lawsuits that could cost the oil industry billions of dollars. Patrick Semansky/AP

Ten years ago, Scott Pruitt made an extraordinary request.

Then-Oklahoma Attorney General Pruitt (R) — who would later lead President Donald Trump’s EPA — was incensed by a decision by Colorado to legalize marijuana, and he wanted to sue his neighboring state. To do so, he needed permission from the Supreme Court, which has exclusive oversight in legal battles between states.

Though the novel 2014 bid from Pruitt and the chief legal officer of Nebraska was ultimately unsuccessful, legal observers say it set Republican attorneys general on a path to raise unconventional state vs. state disputes that they hope will draw the sympathy of an increasingly conservative Supreme Court.

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One of the latest attempts comes from a 19-state coalition led by Alabama Attorney General Steve Marshall (R), which asks the justices to take up their challenge against five Democratic-led states that are seeking to hold the fossil fuel industry financially accountable for rising tides, intensifying storms and other disasters worsened by climate change.

“They’re pushing the envelope,” Paul Nolette, director of Marquette University’s Les Aspin Center for Government, said of the states’ request in the climate liability litigation.

“We’ve seen a lot of arguments that previously wouldn’t have gone anywhere be accepted by the [Chief Justice John] Roberts court,” Nolette said. “This is something of a Hail Mary pass, a ‘see what happens.’”

Most Supreme Court cases originate in lower federal courts, and the justices can pick and choose which appeals deserve a spot on their calendar.

In legal battles between states, however, the Supreme Court is the first — and only — court to get involved in the litigation. Still, the high court is not obligated to take up every lawsuit between states and often declines such cases — though two conservative justices have taken a more expansive view of the court’s obligation to look at state disputes.

The court, which hears about 60 to 70 cases each year, typically takes on just a couple “original jurisdiction” cases, which include disputes between states, per term. Traditionally, the cases have involved tussles over rights to shared water resources, such as rivers that cross state lines.

But legal observers say the novelty of state vs. state complaints has increased since Pruitt and then-Nebraska Attorney General Jon Bruning (R) sought to sue Colorado.

“It was kind of an oddball move in the sense that it really didn’t track with what your typical state vs. state case had been about,” Nolette said of Pruitt’s lawsuit.

Pruitt and Bruning told the Supreme Court in 2014 that Colorado’s decision to become one of the first states to legalize marijuana would lead to greater marijuana use in their states and increase the cost of law enforcement.

In the climate litigation, GOP states similarly contend that liability lawsuits launched by blue states against oil companies pose “grave consequences” for their own residents.

Marshall said in a recent Wall Street Journal editorial that states that have sued fossil fuel companies are seeking to “impose a de facto carbon tax on the American oil and gas industry, potentially creating trillions of dollars in supposed liability.”

California Attorney General Rob Bonta (D) and four of his Democratic colleagues who have sued the oil industry told the court this weekthat it should reject Alabama’s request because the climate lawsuits won’t affect the red states.

“Alabama’s desire to protect those private defendants from liability is not the kind of sovereign concern that warrants an exercise of this court’s original jurisdiction,” Bonta wrote.

‘Wackier and wackier’ cases

While lawsuits between states are a small portion of the Supreme Court’s caseload, that hasn’t stopped Republican attorneys general from trying to get more cases on the docket.

And their efforts have become “wackier and wackier,” said Robert Percival, director of the environmental law program at the University of Maryland.

“In recent years, the court’s agenda has been set by the right wing,” Percival said. “It’s become a right-wing playground.”

At least two members of the Supreme Court’s conservative supermajority appear open to red states’ attempts.

When the Supreme Court declined in 2016 to allow Oklahoma and Nebraska to sue Colorado, Justices Samuel Alito and Clarence Thomas disagreed. In a dissent, Thomas called the court’s approach to hearing such cases “questionable” and said the dispute represented an opportunity for the court to evaluate how it handles original jurisdiction cases.

“I would not dispose of the complaint so hastily,” Thomas wrote.

Thomas and Alito have since repeatedly signaled displeasure with their colleagues’ rejection of legal battles between states.

In 2021, for example, the court rebuffed an effort by Wyoming and Montana to sue Washington state for denying a permit for a coal export terminal. The states argued that Washington state did so because of “discriminatory favoritism” and Democratic Gov. Jay Inslee’s opposition to coal.

Thomas and Alito were the only justices to say they would have agreed to hear the case.

That same year, the court rejected an effort by Texas to sue California over a ban on state-funded travel to states that have passed laws discriminating against LGBTQ+ people. Texas landed on California’s list in 2017 after the state Legislature moved to allow foster care agencies to use religious reasons to deny same-sex couples the right to foster children.

Alito and Thomas once again disagreed, with Alito writing that the court has adopted a practice of turning down state cases “without ever providing a convincing justification.”

He said it is a “dubious factual premise” that such cases would “crowd out consideration of more important matters” that arise from federal appeals courts.

“It is precisely because these disputes have a ‘delicate and grave’ character that they were placed exclusively in our hands,” Alito wrote.

But Alito and Thomas have yet to convince their peers.

The Supreme Court earlier this month rebuffed a request from Missouri Attorney General Andrew Bailey (R) to sue New York to block proceedings in Trump’s hush money case. Bailey had argued the prosecution was politically motivated and would violate the First Amendment rights of Missouri voters to hear from a 2024 presidential candidate.

The court rejected Bailey’s request — over the objections of Alito and Thomas.

The climate fight

Still, Alabama says there is precedent for the Supreme Court to greenlight its challenge against Democratic-led states that are suing the oil industry.

In 1981, the justices heard a case from Maryland and other states over whether Louisiana had unfairly taxed natural gas leaving the state. In a unanimous decision, the Supreme Court agreed that Louisiana’s regulation was unconstitutional, Marshall’s office said.

And the high court in 1923 took up a case from Pennsylvania and Ohio against West Virginia, claiming that the state had violated the Constitution by limiting natural gas supplies.

If Alabama and the other red states are successful, it would mark the Supreme Court’s second crack at the climate liability lawsuits. The justices in 2021 sided with oil companies in a hypertechnical dispute related to whether the cases should be moved from state to federal courts, where industry lawyers believe their clients are more likely to win.

The justices have since turned away companies’ petitions arising from their losses on the procedural issue in federal appeals courts — but more are currently pending.

Legal observers say the states’ effort is another prong of an industry-led pressure campaign to convince the Supreme Court to take its side in the more than two dozen climate liability cases nationwide that could put oil and gas companies on the hook for billions of dollars.

Most of the same Republican attorneys general who are attempting to sue blue states have signed a separate “friend of the court” brief in support of the oil industry’s latest petitions for the Supreme Court to quash the climate liability cases.

All of the officials involved in the red states’ plea are members of the Republican Attorneys General Association, which has counted the Concord Fund as one its biggest donors. The fund is among a network of tax-exempt nonprofits led by Leonard Leo, co-chair of the Federalist Society and a judicial activist who helped select Trump’s Supreme Court nominees.

The red states’ fight has attracted support from a litany of conservative groups, including the National Association of Manufacturers, which runs the Manufacturers’ Accountability Project, a key opponent of the climate liability lawsuits.

In its amicus brief, the association argued that climate action should be handled by Congress.

Allowing a patchwork of lawsuits against the oil industry instead, the association said, would cause “major rifts among the states and constitutional damage.”

More battles on the horizon

Alabama’s Supreme Court plea is illustrative of increasing friction between Republican and Democratic state attorneys general.

Legal observers said they expect the tension to grow after the November election.

“We believe that a significant number of state attorneys general will be extremely motivated to use their offices to litigate federal actions next year — regardless of who is in the White House,” former Arkansas Attorney General Dustin McDaniel, a Democrat, said in an email.

McDaniel, who co-chairs the state attorneys general group at the law firm Cozen O’Connor, said he is telling clients to prepare for the “strong likelihood of increased attorney general investigations and litigation of all types” — particularly in economically critical sectors such as energy.

But while red states might enjoy an ideological advantage in matters that come before the conservative-dominated Supreme Court, Percival noted that the justices remain reluctant to curb states’ powers — even when that means upholding liberal policies.

He pointed to the court’s 2023 ruling in National Pork Producers Council v. Ross, which rejected a constitutional challenge by out-of-state pork producers to a California law that established spacing requirements for sows.

Nolette noted that the court may also be reluctant to begin taking up cases between states because it could result in a deluge of challenges. In recent years, the justices have added fewer and fewer cases to their docket.

If the court advances Alabama’s lawsuit, Nolette said he could envision Democratic attorneys general suing states like Texas over immigration policies, arguing that they usurp federal law.

“The court probably sees that and doesn’t want to open the floodgates for partisan groups of AGs to just start suing each other,” Nolette said.

The Supreme Court is expected to reach a decision on Alabama’s request next term.