Most judges recognize that the judiciary is not a legislature. That hasn’t stopped activist plaintiffs from bringing “public nuisance” suits, seeking to implement environmental regulations that voters and their elected representatives have repeatedly rebuffed. While federal judges have rejected many of these suits, the Hawaii Supreme Court in October let the city of Honolulu’s public-nuisance case against oil and gas producers proceed, bucking a 2021 ruling by the Second Circuit Court of Appeals in an analogous New York case. The U.S. Supreme Court should review this conflict and shut down the Hawaii court’s abuse of the justice system.
First, some background. In April 2021, the Second Circuit addressed an attempt by New York City to regulate oil and gas firms using public-nuisance law—a centuries-old doctrine allowing state and local governments to shut down unreasonable conditions that interfere with the public’s rights, such as excessive noise, an unfenced pit, or an object blocking public roads. The court rebuffed the city’s efforts to declare carbon emissions a public nuisance. In City of New York v. Chevron, the Second Circuit held that the solution to climate change, whatever it is, will necessarily be international in scope. Therefore, it reasoned, cities and states can’t bring public-nuisance suits against oil and gas companies to force them to implement climate-change policies.
The Second Circuit argued that using state tort law to sidestep the interlocking national statutory regimes and international treaties that regulate carbon emissions would turn the American federal system upside-down. According to its unanimous decision, “To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”
In an October 2023 case, however, Hawaii’s Supreme Court reached the opposite conclusion when Honolulu attempted the same scheme of regulating climate change by suing over carbon emissions as a public nuisance. It rejected the Second Circuit’s holding in City of New York and commended the complainant’s “artful pleading.” The Hawaii court’s majority held “that . . . neither federal common law nor the Clean Air Act preempt Plaintiffs’ claims”—a direct contradiction of the Second Circuit’s holding that “[g]lobal warming is a uniquely international concern that touches upon issues of federalism and foreign policy” that “calls for the application of federal common law, not state law.”
Flash forward to February 2024, and defendants in the Honolulu case have asked the Supreme Court to grant a writ of certiorari to hear their appeal of the state court’s ruling. Their petition asks the Court to decide whether federal law precludes state-law claims to compensate for injuries allegedly caused by the effects of international and interstate emissions. Notably, the petition builds on a Delaware Superior Court decision from January 2024, in which Judge Mary Johnston ruled that “seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution, are pre-empted by the [Clean Air Act].” In other words, the Delaware court held that regulating out-of-state emissions was a national, rather than a state or local, prerogative.
Students of history will recall that the 13 original states adopted the U.S. Constitution because the Articles of Confederation had paralyzed interstate trade by permitting states to extract wealth from one another. Today, Hawaii wants to use state tort law to tax and regulate the global operations of out-of-state corporations—a move with historical parallels sufficiently worrisome to warrant Supreme Court review.
Beyond the Hawaii decision’s potential economic effects on the other 49 states, the Supreme Court should resolve this inter-court dispute before it prompts chaos in the nation’s judiciary. As 20 states wrote in an amicus brief in support of the petitioners, “there is now a clear split between courts that will entertain state law suits over interstate emissions and courts that will not,” which should prompt the Court to “act before state courts issue preliminary relief that could trigger a national emergency or fashion a patchwork of new taxes on the Nation’s energy system that would make life harder for every American.”
In resolving this inconsistency, the Court would also help bring a few doses of reality to this on-going legal drama: one, the energy that provides us our unprecedented quality of life often has the side effect of carbon emissions that contribute to climate change; and two, the U.S. has increasingly addressed this through technological innovation that has enabled us to continue to expand economically, while reducing emissions.
Most important is the fact that the Hawaii court is wrong on the merits. As former attorney general Bill Barr wrote in another amicus brief, “Constitutional text, history, and tradition demonstrate that federal law governs claims premised on transboundary emissions.” Therefore, he continued, “The Hawaii Supreme Court reached the wrong answer.”
The Hawaii Supreme Court is an activist body. In another opinion, Hawaii justice Todd Eddins attacked the U.S. Supreme Court for its abortion decision in Dobbs, its free-speech decision in Citizens United, its free-exercise decision in Trinity Lutheran, and its application of originalist jurisprudence, noting that in Hawaii, “the Aloha Spirit inspires constitutional interpretation.” This court is apparently hubristic enough to think that its state laws—and the “Aloha spirit”—can resolve an international problem like climate change. The Supreme Court should disabuse Hawaii of that notion.
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