Climate alarmism has lost at the ballot box time and time again, and last year, even Bill Gates significantly dialed down his support for it. However, enterprising lawyers on the Left are still trying to smuggle in an effective carbon tax through the courts—and the Supreme Court should put an end to it. [some emphasis, links added]
It works like this: local governments or activist groups file a lawsuit against oil and gas companies, claiming that the burning of fossil fuels impacts the climate, and these impacts negatively harm people.
Activist lawyers bring cases in state courts that are more likely to rule in their favor, and—presto!—you’ve got a “carbon tax” imposed on oil and gas companies without needing a vote in Congress.
Don’t take my word for it. David Bookbinder, who served as part of the legal team representing the left-leaning city and county of Boulder in suing oil companies, described the climate lawfare as “an indirect carbon tax.”
“Tort liability is an indirect carbon tax,” Bookbinder said on a Federalist Society panel in October.
“You sue an oil company, an oil company is liable. The oil company then passes that liability on to the people who are buying its products.”
Tellingly, he added, “I’d prefer an actual carbon tax, but if we can’t get one of those… this is a rather, somewhat convoluted way to achieve the goals of a carbon tax.”
The thing is, the law isn’t supposed to work that way.
Problems With the Argument
It’s hard to overstate just how baseless this cockamamie legal argument is.
Colorado Supreme Court Justice Carlos Samour Jr., an appointee of Democrat Gov. John Hickenlooper, put it well in a dissent when the court allowed Boulder’s lawsuit against Suncor Energy and ExxonMobil to go forward.
Samour noted that the court essentially “gives Boulder, Colorado, the green light to act as its own republic.” Why?
Because applying Colorado state law to award damages for the companies’ burning of fossil fuels “will both effectively regulate interstate air pollution and have more than an incidental effect on foreign affairs.”
So, why did the Colorado Supreme Court rule this way?
The law has long treated interstate air pollution as an inherently federal concern under federal common law, but when Congress passed the Clean Air Act in 1970, that displaced federal common law.
Since the Clean Air Act did not “preempt” Colorado from regulating greenhouse gas emissions, the court ruled that state laws may award damages for greenhouse gas pollution.
Yet Samour noted that “state law has historically been incompetent to address claims seeking redress for interstate and international air pollution.”
“Unlike the Blue Fairy that brought Pinocchio to life, the [Clean Air Act] did not magically breathe life into state-law tort claims that had been as lifeless as a wooden puppet,” the justice added.
Read rest at Daily Signal
