Climate Change Weekly # 579—Climate Lawfare Under Counterassault, Finally!
By Sterling Burnett – The Heartland Institute
Over the years, I’ve covered climate lawfare. First, I described a series of dozens of lawsuits filed against fossil fuel companies and industry lobbying groups by climate activist law firms and cities, supposedly on behalf of residents and individuals such as youths, in an attempt to use the court system to impose carbon dioxide restrictions. The effort to engage the judiciary to legislate from the bench across dozens of state and local jurisdictions has failed so far, having been tossed out of a federal court in California and state courts in Maryland, New Jersey, New York, and Pennsylvania. Despite the costly, mounting losses, new lawsuits keep getting filed, or old lawsuits based on different claims refiled, clogging the courts and wasting billions of dollars in legal costs. That is money the industry could have used to develop new production, better securing American energy dominance and lower costs for consumers.
Direct climate lawfare efforts may soon be coming to an end. The U.S Supreme Court has been loath to remove state lawsuits to federal courts, despite clear and legitimate interstate commerce and federal and international law supremacy concerns. In February, however, the court accepted a climate lawfare case out of Boulder, Colorado.
“Boulder contends that oil and gas companies have knowingly played a role in exacerbating climate change and therefore have caused millions of dollars of damage to its property and residents,” reports ScotusBlog. “The oil and gas companies urged the state courts to dismiss the case, arguing that the state-law claims are superseded by federal environmental laws and the federal government’s power to conduct foreign policy.
“[The defendant oil companies] told the justices that the dispute ‘provides the Court with its best opportunity yet to resolve one of the most important questions currently pending in the lower courts,’” continued ScotusBlog, citing the companies’ legal brief. “‘Energy companies that produce and sell fossil fuels … are facing numerous lawsuits in state courts across the Nation seeking billions of dollars in damages for injuries allegedly caused by the contribution of greenhouse-gas emissions to global climate change … but as the Court has recognized for over a century … the structure of our constitutional system does not permit a State to provide relief under state law for injuries allegedly caused by pollution emanating from outside the State.’”
A broad ruling for the companies and against Boulder, with a finding that the claims in Boulder’s lawsuit fall solely under the Federal government’s, particularly Congress’s, purview under the Interstate Commerce Clause and the government’s authority to conduct foreign policy, could end this type of lawfare.
A narrower ruling—and narrow rulings are what the Supreme Court loves to issue—could remove the lawsuit from the state court, leaving it and similar cases for federal courts to decide. That would mean fewer lawsuits, which would be consolidated and would likely end up back before the U.S. Supreme Court in the future, especially if there is a split among federal courts concerning the merit of such lawsuits.
A finding for the plaintiffs, and the sue-a-thon continues.
Regardless, seeing the writing possibly on the wall for such lawsuits, climate activists have not been idle. They are seeking a backdoor way to get judges to legislate climate policy from the bench; climate lawfare part deux, if you will. As I wrote in CCW 570 and 574, climate alarmists have been attempting to undermine the independence of the judicial system by presenting biased information, written by climate activists often actively involved in the lawsuits, to judges involved in or likely to be involved in climate change cases. They were successful in adding a legally compromised climate change chapter to the Fourth Reference Manual on Scientific Evidence by the Federal Judiciary Center, the reference book for science before the federal courts, and through a series of judicial retreats and workshops for judges hosted by the Environmental Law Institute. Both these efforts have gotten the attention of states’ attorneys general and Congress.
Most recently, as detailed by Energy in Depth,
House Judiciary Committee Chairman Jim Jordan (R-OH) and Subcommittee on Courts Chairman Rep. Darrell Issa (R-CA), are accelerating their investigation into climate activists, plaintiffs’ attorneys, and the “improper attempts by the Environmental Law Institute and its Climate Judiciary Project to influence federal judges.”
The committee sent letters to Michael Burger, the Executive Director of the Sabin Center for Climate Change Law at Columbia Law School, Jordan Diamond, the President of the Environmental Law Institute (ELI), and Vic Sher of Sher Edling, the law firm supporting many of the climate lawsuits around the country, seeking more information on their efforts to communicate biased and subjective information to judges who may soon rule on climate litigation.
It’s a significant escalation in an investigation into an influence campaign that included Jordan and Issa sending letters in January to the Judicial Conference of the United States, the Federal Judicial Center and plaintiffs attorneys David Bookbinder and Roger Worthington, and an initial letter to ELI in August 2025.
This is the second time the House Judiciary Committee has sent letters to the academics, nonprofits, and litigators involved in the ELI retreats.
A more direct effort to end climate lawfare is also underway. Rep. Harriet Hageman (R-WY) recently introduced the Stop Climate Shakedowns Act of 2026. As an article in the Daily Caller describes Hageman’s bill, it would by federal law force the dismissal of all active climate litigation and “overrule state-level laws penalizing energy production, prohibit retroactive lawsuits over carbon emissions and reaffirm the federal government’s sole authority to regulate greenhouse gases.” This bill is more than a decade overdue and shows real promise and finality if it can get through the Senate, a big if.
Short of that, unless and until tax-exempt nonprofits and university-linked research institutes cease their obvious attempts to prejudice the judiciary to adopt their position on the causes and consequences of climate change and impose the groups’ preferred remedies of fossil-fuel restrictions, the best path forward might be for the federal government to defund and/or remove the tax-exempt status from any university or nonprofit involved in such efforts. This does not bar the courthouse door to these groups. But it will make clear to the judiciary that the federal government neither supports nor endorses their efforts, and it will deny them scarce taxpayer dollars for an effort that compromises the rule of law and the constitutionally designed separation of limited powers, and harms U.S. energy and economic security and the well-being and pocketbooks of Americans in general.
It’s Congress’ role, if any branch of government, to make energy policy. Not the courts, and certainly not interest groups attempting to break down the walls between the legitimate, constitutionally designed and assigned roles of the different branches of government. The time is now for the Supreme Court, Congress, or better yet both, to end climate lawfare once and for all.
