In early April, The Washington Post published an op-ed trashing state and local efforts to hold Big Oil and Gas accountable under the law for the lies they told about their products’ connections to climate change and damages they inflict on people and the planet. State and local governments have long availed themselves of the courts in this manner when a company’s irresponsible behavior harms members of the public they have a duty to serve.
I submitted a letter to the editor presenting counterpoints to the op-ed’s claims, which included the absurd notion that insulating some of the biggest companies on earth from even a small measure of justice is somehow a vital “national security” interest. The Post chose not to run that letter, so I’m sharing it with readers here.
While conservative legal scholars flip-flopping on constitutional federalism principles to suit their policy preferences is hardly new, the recent Post op-ed calling on the Supreme Court to preempt state climate law cases stands out as extreme (‘Activist local governments should not be regulators of energy markets’).
State police powers — or the inherent power of state governments and their local jurisdictions to protect their citizens and promote the general welfare — are among the foundational building blocks of our constitutional order, notably enshrined in the 10th Amendment. And when it comes to those powers, few issues surpass climate change in import. Already, rising atmospheric climate dioxide concentrations are contributing to such harmful effects as more intense storms and increased incidence of infectious disease.
To be sure, the Constitution recognizes that state police powers must be balanced against legitimate national concerns such as foreign policy; hence, the author’s desperate attempt to conflate such concerns with the oil and gas industry’s narrow interests. Most of the public would certainly reject the notion that businesses responsible for such extensive harms should escape accountability. And even if it were true that our national security was inextricably intertwined with the industry’s crusade to maximize shareholder value, that would suggest a whole host of other problems in dire need of addressing.
Fortunately, it is not true. Holding the oil and gas industry accountable for its public harms is quite consistent with our national security and other foreign policy goals. The U.S. military has recognized that climate change is a ‘threat multiplier’ for decades, and China can tell us all about the economic opportunities in the rapidly growing global clean energy sector.
