What Republicans Should Be Doing to Fight Biden on Energy: Sue Him on Every Front!
My post on the virtual signaling attempt by Republicans to pass a resolution overturning Joe Biden’s latest kill shot fired at the oil and gas industry was, admittedly, quite cynical. But, cynicism is often a window into the truth, so I make no apologies for it. What I do want to do, though, is to show what should be done if Republicans are serious about fighting back and that is to sue the bastards.
There is a perfect example being offered by the joint lawsuit of 19 states from Alabama to Wyoming (the plaintiffs) against defendant states (California, Connecticut, Minnesota, New Jersey, and Rhode Island) that are attempting to impose their politically correct standards on all of America, usurping the role of the Federal government and its interests in unfettered interstate commerce.
Their lawsuit includes a section title “Nature of the Action.” Like all lawsuits, it’s stuffed full of citations and other distractions, so I’ve stripped most of them out to make everything more readable, leaving the following (emphasis added):
Defendant States assert the power to dictate the future of the American energy industry. They hope to do so not by influencing federal legislation or by petitioning federal agencies, but by imposing ruinous liability and coercive remedies on energy companies through state tort actions governed by state law in state court.
In essence, Defendant States want a global carbon tax on the traditional energy industry. Citing fears of a climate catastrophe, they seek massive penalties, disgorgement, and injunctive relief against energy producers based on out-of-state conduct with out-of-state effects. On their view, a small gas station in rural Alabama could owe damages to the people of Minnesota simply for selling a gallon of gas.
If Defendant States are right about the substance and reach of state law, their actions imperil access to affordable energy everywhere and inculpate every State and indeed every person on the planet.
Consequently, Defendant States threaten not only our system of federalism and equal sovereignty among States, but our basic way of life.
In the past when States have used state law to dictate interstate energy policy, other States have sued and this Court has acted. When “West Virginia, then the leading producer of natural gas, required gas producers in the State to meet the needs of all local customers before shipping any gas interstate,” this
“Court entertained a suit brought by” Ohio and Pennsylvania against West Virginia. Maryland v. Louisiana, 451 U.S. 725, 738 (1981) (discussing Pennsylvania v. West Virginia, 262 U.S. 553 (1923)). And in 1981, this Court considered a “functionally indistinguishable” challenge brought by Maryland and other States against Louisiana. Id. Louisiana’s taxation scheme for natural gas threatened the “health, comfort and welfare” of “private consumers in each” plaintiff State through “the threatened withdrawal of the gas from the interstate stream”—“a matter of grave public concern.” The cases raised “serious and important concerns of federalism fully in accord with the purpose and reach of [the Court’s] original jurisdiction.”
The Court’s intervention was warranted then and is warranted now because Defendant States are not independent nations with unrestrained sovereignty to do as they please. In our federal system, no State “can legislate for, or impose its own policy upon the other.”
Yet, Defendants seek to set emissions policy well beyond their borders—punishing conduct that other States find “essential and necessary … to the economic and material well-being” of their citizens.
When controversies arise among sovereigns, their options are diplomacy or war. Missouri v. Illinois, 180 U.S. 208, 241 (1901). The Constitution changed that. When controversies arise among the States of our Union, their options are to seek a federal resolution from Congress or from this Court.
By refusing these federal law paths, taking matters into their own hands, and proceeding under their own laws, Defendant States have greatly “disturb[ed] the harmony between the States.” The Federalist No. 80 (Hamilton).
Accordingly, many States have urged the Court to review the basis for these suits and rule that the subject matter at issue—alleged interstate air pollution—is a “proper object[] of federal superintendence and control,”
Under this Court’s precedents, the actions of Defendant States are unconstitutional. “[T]he basic scheme of the Constitution … demands” the applica- tion of federal law to matters of interstate air pollution. It cannot be otherwise, for every State has a stake in the Nation’s resources and the natural world. And any State’s actions to alter the composition of shared resources necessarily affects the other States. The only neutral authority that can fairly govern such matters is federal law.
Consistent with our constitutional structure and centuries of precedent, the Court explained that federal law must govern “where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism.”
The Court’s rationale in Milwaukee I applies a fortiori to disputes over interstate air. Actions seeking abatement and damages for an alleged “global climate crisis” caused by interstate emissions must be governed by federal law.
There is one global atmosphere, and there is no way to trace a particular molecule of gas in the atmosphere to its source or pinpoint its local effects. If each State had “in- dependent and plenary regulatory authority” over the same emissions, the result would be “chao[s],” including “confrontation between sovereign states,” “impossible to predict [] standard[s],” and a wholly “irrational system of regulation.”
Instead, this Court has long applied federal law to controversies involving interstate emissions.
Defendant States are nevertheless proceeding to regulate interstate gas emissions under their state laws and in their state courts. Through artful pleading, they have avoided removal to federal court. All at once, Defendant States’ actions exceed state authority, flout the horizontal separation of powers, usurp federal authority over a federal issue, and violate the prohibition on extraterritorial regulation embodied in the Commerce Clause.
Plaintiff States and their citizens rely on traditional energy products every day. The assertion that Defendant States can regulate, tax, and enjoin the promotion, production, and use of such products beyond their borders—but outside the purview of federal law—threatens profound injury. Therefore, Plaintiff States have no choice but to invoke this Court’s “original and exclusive jurisdiction of all controversies between two or more States.”
That’s a pretty good set of arguments and this is the way to fight. Hat’s off to the 19 states actually doing something meaningful! Why aren’t our members of Congress doing something comparable regarding the dangerousClean Power Plan 2.0?
#Republicans #FossilFuels #Energy #Biden #California #Lawsuit #SueTheBastards
