Michigan’s climate lawsuit against major oil companies was designed to solve a problem facing the broader climate litigation campaign: courts have grown increasingly skeptical of public nuisance and consumer deception theories aimed at holding energy companies liable for global climate change. [some emphasis, links added]
So, Attorney General Dana Nessel tried something new.
Instead of arguing oil companies misled the public about climate risks, she accused the industry of violating antitrust law – specifically, conspiring to suppress renewable energy and delay the transition away from fossil fuels.
But in sweeping motions filed on May 1 to dismiss, the defendants argue Michigan’s novel theory still collapses under many of the same defects that have plagued climate litigation from the start.
The companies’ lead brief opens with a blunt summary of the defendants’ position:
“This is not an antitrust case. It is an attempt by Michigan to use the antitrust laws to advance its current policy goals of promoting renewable energy over fossil fuels.”
The Conspiracy That Wasn’t
Michigan’s core allegation is that oil and natural gas companies conspired since 1979 to suppress renewable energy development and delay the energy transition, thereby locking Michigan consumers into artificially high fossil fuel prices.
The defendants argue the complaint never plausibly alleges the kind of conspiracy that antitrust law actually requires.
The state offers no direct evidence of any agreement — no recorded call, no written plan, or nothing the brief calls “tantamount to an acknowledgment of guilt.”
What it offers instead is decades of independent business decisions by competing companies and asks the court to infer collusion. But those decisions don’t look parallel.
For example, as the complaint points out, ExxonMobil exited solar in 1984; Shell stayed in until 2009; Chevron until 2014.
For a conspiracy that supposedly launched in 1979, the alleged co-conspirators couldn’t even stay in the same market within the same decade.
The defendants’ motion bluntly states that continued investment in traditional energy sources, by traditional energy companies, is no evidence of collusion:
“Michigan imagines that, absent conspiracy, defendants would have raced to abandon hundreds of billions of dollars in existing fossil fuel assets and infrastructure. That these companies may have prioritized the stability of their long-standing, profitable fossil fuel businesses over risky renewable energy investments does not remotely suggest they conspired with each other.” (Emphasis added)
Michigan’s own complaint acknowledges the obvious reasons why energy companies continued to rely on fossil fuels: massive infrastructure investments, entrenched distribution systems, uncertain profitability of renewables, and regulatory complexity.
The complaint also concedes that defendants are “increasing oil and gas production” – a strange thing to allege in a case premised on anticompetitive harm. Increased production is pro-consumer. It is not an antitrust violation.
Michigan’s own facts don’t help its theory. Renewable energy use in the state grew from 7.8 percent to 12 percent in a single year.
There are 180,000 EVs registered in the state. Electricity costs Michigan drivers half as much per mile as gasoline does. That’s not what a successful 47-year conspiracy looks like.
The state’s real grievance, defendants argue, is that oil and gas companies have not transitioned away from fossil fuels quickly enough. That may be a political argument, but it is not an antitrust claim.
The Same Causation Problems, Repackaged
Michigan’s lawsuit was designed to sidestep the causation and standing problems that have sunk earlier climate cases.
But the defendants argue those problems remain unavoidable – Michigan just repackaged them in antitrust language.
Michigan’s theory requires courts to accept a chain of speculation: that different investment decisions decades ago would have accelerated renewable technology development, expanded EV charging infrastructure, changed consumer behavior, reduced global fossil fuel demand, and ultimately lowered retail energy prices in Michigan today.
That is a lot of steps. The defendants call it a “tortured path,” and courts have refused to entertain causal chains far less attenuated than this one.
The redressability problem – meaning, whether a judge could actually remedy the alleged harm – is just as bad.
An injunction against defendants wouldn’t compel automakers to build EVs consumers want at prices they’ll pay, or force utilities to expand grid capacity, or change the independent decisions of the countless third parties Michigan’s theory depends on.
As the brief puts it: “no order of the court could redress these alleged injuries.”
Michigan Is Trying to Regulate National Energy Policy Through State Law
The companies argue Michigan is effectively attempting to use state antitrust law to regulate nationwide fossil fuel production and energy markets – something courts have repeatedly rejected.
The Second Circuit Court of Appeals already told New York City it couldn’t do that — claims seeking relief for “the cumulative impact of conduct occurring simultaneously across just about every jurisdiction on the planet” are “simply beyond the limits of state law.” The Maryland Supreme Court said the same thing just two months ago.
Notably, a related preemption question — whether federal law bars state-law claims for injuries allegedly caused by interstate and international greenhouse gas emissions — is currently before the Supreme Court with the Boulder case.
If the Court rules against state-law climate claims there, that decision would dispose of Michigan’s Antitrust Reform Act (MARA) claim here as well.
Bottom Line
Michigan’s antitrust theory was supposed to be the climate litigation campaign’s way around the legal walls that have stopped it everywhere else.
If it works, the theory would dramatically expand antitrust law beyond its traditional purpose and convert ordinary business decisions into conspiracy claims.
If it doesn’t — and the motion to dismiss makes a strong case that it won’t — it’s one more data point that no matter how you dress up climate policy grievances in legal language, courts keep reaching the same conclusion: it’s still just putting lipstick on a pig.
Read more at EID Climate
