The Climate Outside the Courtroom

 Introduction

Advocates of emissions-based and clean energies have been waging battle since humans started consuming energy on a massive scale. The conduct of either camp relies heavily on federal regulations that often serve as impediments or incentives and affect overall production and consumption of energy. Throughout ongoing antagonism between advocates of either, a step forward for one is a stumbling block for the other. Whether the success of clean energy sources wholly excludes emissions-based is an epic story left unresolved. But consumers have an interest in resolution sooner rather than later, as 2023 served as the hottest year ever recorded—a result substantially caused by emissions fueling climate change.[1] Environmental researchers declare five fossil fuel companies as responsible for 14% of historic greenhouse gas emissions.[2] 2023 ironically also holds record for most oil ever produced by the U.S.[3] So, who is winning the battle, and who is retreating? Taken together, these statistics suggest fossil fuel companies have done well in terms of production. But that is not to say they have not faced attack in the courtroom.

Legal scholars assert, climate “[l]itigation is important not only for its ability to create substantive legal change, but also for its power to generate media coverage and shape public political discourse.”[4] Discourse drives results at the “ballot box”—where at least one federal court has said “compelling case[s]” about clean energy ought to be addressed.[5] Policy implementation will not be the focus of this discussion, however. Instead, legal claims involving (i) fossil fuel industry giants, (ii) local, state and federal governments, and (iii) individuals who support clean energy will be analyzed.

In the first section, the proliferation of the clean energy movement will be discussed, as well as stakes and future interests of key technologies. The second section will undertake a similar analysis of the American Petroleum Industry (“API”), a trade association of 600 members that includes recognizable fossil fuel and oil producers. The third section will then analyze recent litigation brought by and against these parties. This analysis will compare and contrast litigation positioning, strategies and outcomes. Finally, the discussion will make predictions and conclude.

Background, Stakes and Interests

A.    Wind and Solar Technologies Comprise the Bulk of Clean Energy Sources.

The foremost sources of clean energy production discussed in this analysis are solar and wind. These sources dominate the overall make up of emissions-free technologies in terms of current production and investment.

Solar Energy Industries Association, the largest trade group in the solar industry, reports enough solar energy is currently being generated to power 33 million homes.[6] Although solar technology has existed for decades, it has seen rapid and substantial growth in the twentieth century. “In the last decade alone, solar has experienced an average annual growth rate of 22%.”[7] In 2023 solar energy was responsible for 52% of added energy capacity in the U.S.[8]

One substantial source of recent growth is a result of the Western Solar Plan, a long term strategy developed in 2012 by the Obama administration to expand solar energy production.[9] Over a decade ago, the administration set out to provide a “blueprint for utility-scale solar energy permitting in Arizona, California, Colorado, Nevada, New Mexico and Utah.”[10] The strategy includes incentives for development and expansion into land with planned electricity transmission.[11] In 2024, the U.S. Bureau of Land Management announced as part of the Western Solar Plan additional land in five new states—Idaho, Montana, Oregon, Washington and Wyoming.[12] This territory represents 22 million acres of federal land opened up exclusively for clean energy production, with priority in areas within ten miles of existing or planned transmission lines.[13] This growth underscores the U.S. government’s recent dedication to alternative energy expansion—an aspiration for Obama and Biden administrations.

Wind energy on the other hand has suffered recent deceleration in expansion and investment as compared to solar production. Economic conditions like rising inflation and interest rates, reduced tax incentives and problems with supply chains are partly to blame.[14] Wind energy projects saw a 37% year-over-year drop at the end of 2022—a stark contrast to the recent explosion in solar growth.[15]

Wind and solar are just two examples of available technologies that make up a larger effort to decrease consumers’ overall reliance on emissions-based energy. BloombergNEF, a clean energy research organization has proposed the “Net Zero Scenario”—a hypothetical energy allocation plan whereby total production achieves net-zero omissions in 2050.[16] This plan proposes a scenario that gradually shifts away from fossil fuel energy production entirely. “In the Net Zero Scenario, wind and solar power [will be] more than three-quarters of total power generation.”[17] Other sources include clean energy technologies such as nuclear, hydrogen, and carbon capture storage.[18] Even with recent solar expansion, BloombergNEF says, “[e]ach of these key technologies is still at a fraction of the scale that is needed” in order to achieve an emissions-free power grid.[19]

An emissions-free energy production model currently sits just outside of U.S.’ reach. According to the International Energy Agency, a global intergovernmental organization, if the world intends to avoid climate catastrophe, fossil fuel companies remain too-heavily focused on oil and gas production.[20] As it stands, oil and gas companies spend just 2.5% of their overall capital on alternative energy technologies.[21] Despite big fossil fuel’s lack of investment, the U.S. government remains committed to being a conduit for utility-scale expansion of clean energy technologies. For instance, during the Biden administration, the president signed into law an optimistic public investments agenda that included the Bipartisan Infrastructure Law and the Inflation Reduction Act—two key pieces of legislation that provide “incentives for manufacturing across the clean energy supply chain, investments in demonstration projects, loans and … guarantees for a variety of technologies, and production and investment tax credits for clean energy generation.”[22] With solar energy, the Biden administration has reported a planned expansion of 100 gigawatts—enough to power more than 10% of U.S. homes.[23] The current administration also reports growth in power grids and battery deployment for clean energy storage.[24] Government support has led some private companies to commit $360 billion of their own capital to clean energy manufacturing and alternative power generation.[25] By 2030, the White House predicts a total expansion of clean energy generation capacity that will have doubled since 2022.[26] To what extent this focus on clean energy will affect the oil and gas industry remains to be seen, but pro-clean energy experts hope to witness prioritization of clean energy technologies in both government and private sectors. But not all energy producing stakeholders share this sentiment.

B.    American Petroleum Institute Represents the Bulk of Fossil Fuel Producers.

At the other end of the energy economy sits API, a trade group comprised of hundreds of members “who produce, process, and distribute the majority of the nation’s energy,” including, BP, Chevron, Exxon Mobil, Phillips 66 and Conoco.[27] Together, these fossil fuel companies report annual revenues of $3.5 trillion in the last five years.[28] Despite climate concerns, API CEO, Mike Sommers, maintains advocacy for fossil fuel production.[29] He and oil and gas advocates blame the Biden administration for curbing production by introducing pro-clean energy regulations. But the fact remains oil production has reached record highs under the current administration.[30]

Even so, according to Sommers, “[t]his administration has gone backwards on energy policy.”[31] He says, “[r]enewable sources have a role to play, but oil and natural gas will be needed for decades.”[32] Emissions-based energy advocates also assert the U.S. electric system is increasingly unreliable due to premature retirement of coal plants, inadequate natural gas pipeline infrastructure, and the federal government’s preference for “weather-dependent” renewable energy sources.[33] Last year, Commissioners of the Federal Energy Regulatory Commission told the U.S. Senate Energy and Natural Resources Committee, “[w]e face unprecedented challenges to the reliability of our nation’s electric system,” and, “[t]he United States is heading for a very catastrophic situation in terms of reliability.”[34]

Aside from domestic problems in the utility grid and energy production makeup, the fossil fuel industry faces other hurdles globally. For instance, recent attacks by Houthi rebels on tankers transporting oil in the Red Sea has resulted in trade restrictions due to safety concerns.[35] International conflict leads Sommers and others to reiterate the need for domestic production, pointing out, “[o]il prices have stabilized right now and it is only because of the American energy revolution … American oil and gas producers should be thanked.”[36] This API rhetoric to energy consumers is common. API opponents, however, perceive domestic expansion as outmoded and readily accuse the oil industry of “trying to expand the fossil fuel system, expand pipelines, expand fracking, and make more of our economy and our existence dependent on fossil fuels, even though clean energy is advancing at a rapid rate.”[37] But API asserts domestic energy production is already allocated adequately: “[t]he record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint.”[38]

Clean energy sources comprise a great deal of recent energy expansion, largely sponsored by the U.S. government. But the government has also sponsored emissions-based production, auctioning off 73 million acres of domestic Gulf of Mexico waters for planned drill sites just last year.[39] The U.S. has seen tremendous record fossil fuel extraction in the face of expanding clean energy technologies.[40] While there is government support for both clean and emissions-based energy production, history indicates it is unlikely these two coalitions can progress in harmony. Outside of legislation and public policy, the primary arena where disputes readily occur is federal and state courts.

Legal Disputes and Claims

A.    American Petroleum Industry is Reluctant to Litigate, Especially in State Court.

1.     Cities and States, However, Increasingly Bring Suits against API on State Tort Liability Theories.

States, municipalities, and private individuals have begun bringing lawsuits against API in recent years. Some insights can be gleaned, like the nature of the complaints and the appropriate venue. Likelihood of actual success on the merits is more difficult to predict due to the fact that many of these claims are fairly recent. But perhaps the point is for state and municipality plaintiffs to gather public support through publicized litigation in order to achieve climate and energy goals. That approach by clean energy advocates may be plausible given the fact that API and some courts have asserted energy policy is for voters to decide.

In February 2024, the city of Chicago brought a lawsuit against API alleging it and big oil companies lied about products and misled the public about the dangers of climate change for years.[41] That complaint was filed in the Cook County Circuit Court in Illinois and named defendants BP, Chevron, Conoco, Phillips, Exxon, Shell and API.[42] The City argues its citizens were injured as a result of flooding, extreme heat and other weather-related destruction exacerbated by defendants’ wrongful conduct.[43] The City asserts claims of products liability, negligence, civil conspiracy, unjust enrichment, fraud and misrepresentation.[44] It also seeks billions of dollars in damages.[45] The thrust of the City’s complaint is that the named oil and gas giants deceived energy consumers despite knowledge of climate effects.

API general counsel responded by saying claims by states and municipalities are “meritless, politicized lawsuits against a foundational American industry and its workers.”[46] According to API, oil and fossil fuel energy production is a policy issue, not a judicial one: “[c]limate policy is for Congress to debate and decide—not the court system.”[47] If so, why is Chicago bringing these suits now? Part of the rationale is likely because climate-related effects like extreme heat and increased rainfall have become exacerbated in recent decades. In Chicago, the City and clean energy advocates postulate these climate events are a result of over-reliance on fossil fuels. Citing one specific “heat event” in its pleading, the City said over 700 residents died in 1995 as a result of a heat wave lasting four days, claiming, “[m]any of the victims … were elderly, low-income, and Black, living in areas that experience urban heat island effects … and in neighborhoods lacking social infrastructure and critical resources to withstand extreme heat events.”[48] Other portions of Chicago’s complaint also make similar appeals at public policy reform. The City appears concerned many of its citizens are ill-equipped to handle adverse climate events that are occurring more frequently. It is plausible that as a last resort, Chicago, like other states and municipalities, has turned to courts to help effectuate policy.

A recent body of psychological research concludes energy consumers’ complacency is a result of “cognitive hurdles” like uncertainty, wishful thinking and other difficulties with comprehending the immediacy of the issue.[49] These researchers offer ways for climate advocates to “activate people’s moral intuition” in order to get them to “engag[e] with climate change.”[50] One such proposal is through climate change litigation.[51] Focusing on the recent Chicago suit, the outcome at this early stage is speculative at best; defendants were served summons in March—just two months before this analysis was completed.[52] However, since March, the Cook County Circuit Court ordered the matter removed to a Federal District Court.[53] There have been no subsequent docket entries since. Previous complaints of similar nature suggest State courts are open to hearing municipalities’ claims without remanding to federal court. And ever since a landmark U.S. Supreme Court opinion dealing with climate change came down in 2007, “the number of climate lawsuits in the United States [has] ballooned,” and of those, “[l]egal challenges to coal-fired power plants are the most frequently filed form of climate lawsuits.”[54] Commenting on the Chicago complaint, professor at Vermont Law and Graduate School, Pat Parenteau, said, “Chicago is signing up for many, many years of litigation. Ten years is my estimate—if they get to the goal line and prove billions of dollars in damages.”[55] Whether the federal court will ultimately remand and kick the City’s complaint back to Illinois state court is unknown, but the following cases may provide some indication.

In 2023, Minnesota sued API and Exxon Mobil among others in state court under consumer protection statutes.[56] As with the complaint in Chicago, Minnesota brought all its claims under state law.[57] In Minnesota, the Eighth Circuit said Minnesota “joined the growing list of states and municipalities trying to hold fossil fuel producers responsible for alleged misrepresentations about the effects fossil fuels have had on the environment.”[58] Aware of increasing localized attacks, API has argued the dispute is one of national policy and legislation, and appears to think a federal judiciary will agree. In Minnesota, API  successfully removed the case to federal court.[59] However, the case was ultimately remanded back to state court where the Eighth Circuit affirmed, and in its opinion cited support from other courts that also rejected API’s attempts to remove similar claims to federal court.[60]

Analogous misrepresentation claims by states and municipalities have been brought elsewhere. States like Rhode Island have sued oil and gas giants, as well as cities like Baltimore, Hoboken and San Mateo.[61] In those disputes and in Minnesota, courts have concluded a State court is the appropriate venue, despite fossil fuel companies’ assertion otherwise. Focusing on Minnesota, API insisted the state law claims were preempted by federal law and that they raised a substantial, disputed federal question regarding the regulation of “transboundary pollution.”[62] On the preemption defense, the Eighth Circuit found no complete preemption because there was no federal cause of action that replaced Minnesota’s consumer protection claims.[63] “Contrary to the Energy Companies’ insistence, federal common law on transboundary pollution does not completely preempt Minnesota’s claims.”[64]

In Chicago and Minnesota, defendant API’s wrongful conduct was, at least in part, production of fossil fuels by its corporate members. In Minnesota, API argued its interstate operations were sufficiently federal in nature, but the Eighth Circuit did not find that argument persuasive.[65] Putting operations aside, API has insisted these types of state and municipality claims “necessarily raise issues governed by federal common law,” and are an impermissible “attack on cost-benefit analyses committed to … by[] the federal government.”[66] But the Eighth Circuit in Minnesota disagreed, saying, “none of our sister circuits have found that argument persuasive.”[67]

In a similar suit brought by Rhode Island in 2022, API argued the claims were removable to federal court under admiralty statutes because “fossil-fuel extraction occurs on vessels engaged in maritime commerce.”[68] API also sought removal by citing federal bankruptcy statutes it said applied to defendant Texaco which had been undergoing a “bankruptcy plan.”[69] But in Rhode Island, the First Circuit disagreed and remanded the case back to state court.[70]

At least one Appeals Court has gone the opposite way though, ruling instead in favor of fossil fuel producers. In 2021, New York City sued Chevron, Conoco Phillips and Exxon among others in the District Court for the Southern District of New York.[71] The City brought tort law claims in an attempt to hold API and oil companies liable for damage caused by greenhouse gas emissions.[72] The Second Circuit agreed that the dispute was for federal court to decide.[73] According to the Second Circuit, “[g]lobal warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law.”[74] The Second Circuit disagreed with the lawsuit’s characterization as “merely a local spat,” and instead believed the litigation would have an “appreciable effect on national energy or environmental policy.”[75] Even so, the Second Circuit affirmed the lower court’s dismissal of the City’s claims.[76] Much of the Court’s rationale in New York relied on the fact that federal statutory regimes and international treaties provided an “interlocking framework[] for regulating greenhouse gas emissions, as well as enforcement mechanisms,” and therefore the City could not “sidestep[] those procedures” by relying on state tort law.[77] New York signals that at least one circuit court of appeals agrees with API’s position regarding the proper venue for state and municipalities suing under state law tort theories.

Finally, in 2023, the District of Columbia sued several fossil fuel producers in the Superior Court of the District of Columbia.[78] In that case, defendants Exxon Mobil, Shell, BP and Chevron attempted removal, but the federal court found jurisdiction lacking and remanded to the D.C. Superior Court.[79] That remand was appealed and the D.C. Circuit Court of Appeals upheld the remand, relying on the fact that D.C. brought its claims under the D.C. Consumer Protection Procedures Act, and despite the fact that the Exxon and defendants raised federal defenses.[80] One additional defense was raised by Exxon: D.C. was purposely attempting to frustrate removal to federal court “by pleading [the] case without reference to any federal law.”[81] In D.C., defendants argued the state statute in dispute was subject to federal preemption and that the complaint “turn[ed] on the federal common law of interstate air pollution and therefore ar[ose] under federal law.”[82] According to defendants, “when a state-law action is necessarily governed by federal common law, the artful pleading doctrine should allow for removal to federal court ….”[83] The Court of Appeals did not buy the oil companies’ argument, holding instead there is no federal common law of interstate air pollution since enactment of the Clean Air Act.[84] Under established Supreme Court doctrine, the Act displaces federal common law for state nuisance actions for interstate air pollution.[85] In D.C., the Court of Appeals rejected all attempts at removal, concluding that because the District of Columbia brought its suit exclusively under D.C.’s Consumer Protection Procedures Act, any basis for federal jurisdiction was lacking.[86]

With the exception of New York, the litigation in D.C. is similar to the previously mentioned disputes occurring in Chicago, Minnesota, and Rhode Island, in the sense that the federal court agreed that the dispute was a local one. One unique aspect of D.C., however, was defendants’ ability to appeal the federal court’s decision to remand. According to the Court of Appeals, appeal was possible because of an exception referred to as the federal officer removal statute.[87] Defendant fossil fuel companies argued that through previous and ongoing commercial relationships with the U.S. government, they were effectively acting under federal officers pursuant to federal law.[88] But the Court of Appeals didn’t buy that assertion and said any such operational conduct on behalf of defendants was not sufficiently related to the suit.[89]

Together the implications of the aforementioned holdings suggest courts are inclined to keep state and municipalities’ lawsuits in state court rather than allow them to be removed to federal court as insisted by corporate fossil fuel producers. API has contended its operations and conduct are a national matter and it has set forth various arguments that it thinks support removal. For a state court hearing the case, it may have an easier time than a federal court sympathizing with the claims asserted by plaintiffs. For instance, Chicago’s assertion that “[d]efendants’ misconduct has resulted in tremendous harm to people, property, and environment in the City” may have greater persuasive power for a court positioned in the state of Illinois.[90] An Illinois court may appreciate the immediate threat to its local environment when faced with a statement like, “Chicagoans and their families, communities, and small businesses should not have to bear the costs of climate change alone.”[91] Such propositions are likely more palatable to a local judiciary.

2.     State and Municipalities’ Recent Trend of Attack on Fossil Fuel Companies May Have Been Inspired by Claims Brought by Private Citizens.

A slightly different type of dispute involving API as a defendant happened in 2020 and may have been a catalyst for climate change litigation. In Juliana, API actually intervened alongside defendant U.S. government in an action brought by private individuals alleging various constitutional law claims.[92] After intervening, API attempted to dismiss the case by arguing private, pro-clean energy plaintiffs were impermissibly attempting “to commandeer the authority of many federal agencies to direct them ‘to cease their permitting, authorizing, and subsidizing of fossil fuels’ and take whatever other actions are ‘necessary’ to drastically reduce greenhouse gas emissions in the U.S.”[93] Unsurprisingly, API believed the court lacked federal subject matter jurisdiction and that plaintiffs had failed to state a claim.[94] At the outset, the Oregon District Court in Juliana recognized the stakes, identifying the issue as “whether plaintiffs may challenge defendants’ climate change policy in court,” and saying if defendants’ energy policy was invalid, the dilemma was “whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”[95] The District Court denied the motion to dismiss despite defendant API and U.S. government’s assertion that the claim was a non-justiciable political question.[96] The District Court believed the issue of climate change and energy production was a “major public policy controversy,” and thought plaintiff’s claims were justiciable.[97] Defendants appealed and the Ninth Circuit remanded back to district court with instructions to dismiss for lack of Article III standing.[98] The Ninth Circuit acknowledged plaintiffs “made a compelling case” for climate change action and that “it will be increasingly difficult … for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions.”[99] In Juliana, the Ninth Circuit concluded, “the plaintiffs’ case must be made to the political branches or to the electorate at large.”[100]

As indicated, Juliana was brought by private individuals rather than a state or municipality. Whether this distinction had an effect on the outcome is hard to say. A court may be more inclined to tell voters acting on their own behalf to bring their energy grievances to the polls. Looking ahead to future litigation against fossil fuel producers, one real possibility is that while some courts appear willing to hear claims at the state level, state courts may nevertheless dismiss after determining claims to be nonjusticiable issues. Regardless, there is an apparent increasing trend of states and cities, on behalf of their citizens, to bring climate and energy lawsuits against API and major corporate fossil fuel producers in state court. And there is a predictable response by API to try and remove them. While there may be doubts and uncertainty about the likelihood of success on the merits, it is possible the goal is not that, but instead to publicly declare climate change as a “calamitous environmental phenomenon[,]” and then encourage citizens to act in support of clean, emissions-free energy through policy achievement.[101]

B.    American Petroleum Industry Enters the Judicial Arena Only as a Last Resort.

As shown, API is leery of climate-related energy litigation. According to general counsel for Chevron, “[a]ddressing climate change” does not require “meritless local litigation over lawful and essential energy production.”[102] Phillips 66 general counsel has said, “efforts around energy and climate solutions are best addressed outside the courtroom.”[103] Nevertheless, API has initiated suits in order to challenge pro-clean energy mandates and administrative agency authority. The infrequency and irregularity of these sorts of claims suggests API deems them especially significant, so much so that litigation is the only possible means of success.

In 2010, API attempted to invalidate a North Carolina statute by arguing it was preempted by federal law and also violated the Commerce Clause.[104] Under the state statute, suppliers importing gasoline into the state were required to give distributors and retailers the option of whether to buy gasoline suitable for ethanol blending—a practice executed later on in production as part of a federal renewable fuel program.[105] The Energy Policy Act of 2005, created by Congress and enforced by the EPA, is aimed in part at achieving independent energy production.[106] Under the Act, the EPA has power to create regulations to ensure gasoline sold contains the appropriate volume of renewable fuel.[107] The North Carolina statute, as a means of supporting clean energy, voided any contractual provision restricting or preventing a distributor or retailer from blending gas with ethanol.[108] API argued the state law interfered with the accomplishment of the federal renewable fuel program’s goals and Congress’ chosen methods of achievement.[109] API also alleged the state statute impermissibly opposed interstate commerce from out-of-state suppliers by imposing obligations on importers into North Carolina.[110] Ultimately, the District Court did not allow API’s attempts to invalidate the statute to succeed, holding instead in favor of North Carolina and its efforts to support cleaner energy sources.[111]

API has brought other claims against federal agencies after new rules were introduced. For instance, in 2008, API challenged the validity of a regulation promulgated by the EPA.[112] API alleged definitions under the regulation were too broad and thus extended EPA’s authority too far.[113] The suit was brought in the U.S. District Court for D.C., and pro-alternative energy groups like Sierra Club and the state of New York intervened as defendants alongside the EPA.[114] Under the Clean Water Act, the EPA had regulatory authority over “navigable waters,” an expansive definition thought to have given EPA substantial regulatory authority over areas were API member Marathon drilled for oil.[115] According to API, the definition under the new regulation lacked rational explanation.[116] In response, defendants collectively argued API lacked standing and that its challenge was unripe.[117] After a lengthy analysis of administrative agency authority under the Constitution, the District Court ultimately invalidated the new regulation.[118]

In an analogous suit filed in 2012 by API against the EPA, the D.C. Court of Appeals agreed with defendants that the challenge to a new agency regulation was unripe and held the claim in abeyance until EPA issued further reporting on the proposed rule.[119] Even more recently, API has brought litigation not against the EPA but the Department of Interior and Bureau of Ocean Management, challenging a recent announcement about oil and natural gas leases by the government in the Gulf of Mexico, alleging “this administration has used every tool at its disposal to restrict access to vast energy resources in federal waters.”[120] API general counsel called the agency action “arbitrary, capricious, and not in accordance with the law[,]” and petitioned the D.C. Court of Appeals to review the agency’s record.[121] Clean energy advocates point out API frequently invokes the major questions doctrine when challenging agency action.[122] Under that doctrine, Congress must expressly permit agencies to handle politically and economically significant issues like climate change.[123] API thus again appears to be pleading to a court that the issue is not a matter for a court to decide, but for the legislative branch in its challenge of the Department of Interior’s conduct.

In suits challenging the federal government’s authority, courts often agree that the goal is to  “conserve judicial resources,” and maintain courts’ “theoretical role as the governmental branch of last resort.’”[124] As seen, this sentiment is shared by API. Although API sometimes sues to challenge the federal government’s authority to restrain fossil fuel production, overall, it is generally reluctant to litigate, especially in state court. The specific nature of these claims against governmental agencies and their infrequency suggests API and its affiliate members are less likely to compel lawsuits, and only do so when they believe the government has exceeded its power in a way that adversely affects the free flow of fossil fuel production.

Conclusion

Climate change litigation inevitably involves disputes about the overall makeup of domestic energy production. The lawsuits previously discussed demonstrate a movement brought by states and municipalities to initiate lawsuits, compelled out of concern for citizens or perhaps due to increased pressure from climate advocates who hope to shift to an energy model comprised predominantly of emissions-free energy sources. API commonly reacts by dismissing these disagreements as a policy preference not applicable for judicial enforcement. It seems that only when governmental regulations restrict fossil fuel production does API freely enter litigation. Even with recent mounting public pressure to reduce emissions-based energy production in the U.S., it seems doubtful API will cede control of its market share within the confines of a state courthouse. “Climate policy is for Congress to debate and decide, not a patchwork of city halls and courts,” API has declared. [125] Nevertheless, API may be forced to defend its legal interests. The efficacy of lawsuits brought by states, cities and private citizens greatly depends on the claims brought and the chosen venue. Whether the aforementioned disputes will ultimately result in a shift in energy policy is a story without an ending. Some believe mounting litigation against complacent fossil fuel producers is the primary tactic for avoiding catastrophic climate events. And whether initiated within or outside the courtroom, “failure to change existing [energy] policy may hasten an environmental apocalypse.”[126]

[1] Dharna Noor, US oil lobby launches eight-figure ad blitz amid record fossil fuel extraction, The Guardian (January 10, 2024), https://www.theguardian.com/us-news/2024/jan/10/oil-ads-lights-on-energy; See also Damian Carrington, 2023 Smashes Record for World’s Hottest Year by Huge Margin, The Guardian (January 9, 2024), https://www.theguardian.com/environment/2024/jan/09/2023-record-world-hottest-climate-fossil-fuel.

[2] Grace Nosek, Climate Change Litigation and Narrative: How to Use Litigation to Tell Compelling Climate Stories, 42 WM. & MARY ENVTL. L. & POL’Y REV. 771 (2018).

[3] Oliver Milman, US oil and gas production set to break record in 2023 despite UN climate goals, The Guardian (November 27, 2023), https://www.theguardian.com/environment/2023/nov/27/us-oil-gas-record-fossil-fuels-cop28-united-nations.

[4] Nosek, supra note 2, at 733.

[5] Juliana v. U.S. 947 F.3d 1159, 1175 (9th Cir. 2020).

[6] SEIA: Solar Industry Research Data, (last accessed March 13, 2024), https://www.seia.org/solar-industry-research-data.

[7] Id. (emphasis added).

[8] Darren Orf, It’s Official: America is Experiencing a Solar Power Explosion Unmatched in History, Popular Mechanics (March 12, 2024), https://www.popularmechanics.com/science/green-tech/a60130391/solar-breaks-record-2023/.

[9] U.S. Department of the Interior: Obama Administration Approves Roadmap for Utility-Scale Solar Energy Development on Public Lands, (last accessed March 13, 2024), https://www.doi.gov/news/pressreleases/Obama-Administration-Approves-Roadmap-for-Utility-Scale-Solar-Energy-Development-on-Public-Lands.

[10] Id.

[11] Id.

[12] Alex Baumhardt, Feds could tap more Northwest land for potential expansion of solar energy, Oregon Public Broadcasting (January 22, 2023), https://www.opb.org/article/2024/01/22/us-may-add-washington-oregon-to-solar-expansion-plan/.

[13] Id.

[14] Bob Woods, From GE to Siemens, the wind energy industry hopes billions in losses are about to end, CNBC (April 17, 2023), https://www.cnbc.com/2023/04/17/from-ge-to-siemens-wind-energy-hopes-its-crisis-is-about-to-end.html.

[15] Id.

[16] New Energy Outlook 2022, BloombergNEF, (last accessed March 13, 2024), https://about.bnef.com/new-energy-outlook/.

[17] Id.

[18] Id.

[19] Id.

[20] Jillian Ambrose, Companies still investing too much in fossil fuels, global energy watchdog says, The Guardian (November 23, 2023), https://www.theguardian.com/business/2023/nov/23/companies-still-investing-too-much-in-fossil-fuels-global-energy-watchdog-says.

[21] Id.

[22] Building a Thriving Clean Energy Economy in 2023 and Beyond (last accessed April 21, 2024), https://www.whitehouse.gov/briefing-room/blog/2023/12/19/building-a-thriving-clean-energy-economy-in-2023-and-beyond/.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] American Petroleum Institute: Membership (last accessed March 14, 2024), https://www.api.org/membership; See also American Petroleum Institute: Members (last accessed March 14, 2024), https://www.api.org/membership/members.

[28] Ambrose, supra note 20.

[29] Matt Egan, Big Oil CEO is concerned about potential Middle East escalation, touts record US supply, CNN Business (January 10, 2024), https://www.cnn.com/2024/01/09/business/big-oil-ceo-war-in-middle-east-price-surge/index.html.

[30] Id.

[31] Id.

[32] Id. (emphasis added).

[33] One primary advocate of emissions-based energy production is journalist Robert Bryce. Bryce was keynote speaker at API’s 2024 Inspection and Mechanical Integrity Summit in Texas. Robert Bryce, EPA v. The Grid (May 13, 2023), https://robertbryce.substack.com/p/epa-v-the-grid.

[34] Ethan Howland, FERC commissioners tell senators of major grid reliability challenges, with some blaming markets, Utility Dive (May 5, 2023), https://www.utilitydive.com/news/ferc-grid-reliability-senate-energy-hearing/649523/#:~:text=DER,FERC%20commissioners%20tell%20senators%20of%20major%20grid%20reliability%20challenges,%20with,work,%E2%80%9D%20he%20said%20Thursday.

[35] Egan, supra note 29.

[36] Egan, supra note 29 (emphasis added).

[37] Noor, supra note 1 (emphasis added).

[38] Zack Budryk, Chicago sues oil companies for impacts of climate change, The Hill (January 21, 2024), https://thehill.com/policy/energy-environment/4480345-chicago-sues-oil-companies-for-impacts-of-climate-change/.

[39] Ella Nilsen, Biden administration moves ahead with massive Gulf of Mexico drilling auction, weeks after approving Willow Project, CNN politics (March 29, 2023), https://www.cnn.com/2023/03/29/politics/gulf-of-mexico-drilling-lease-sale-biden-climate/index.html.

[40] Noor, supra note 1.

[41] Brett Chase, Chicago sues five giant oil companies, accusing them of climate change destruction, fraud, WBEZ Chicago (February 20, 2024), https://www.wbez.org/stories/chicago-sues-five-giant-oil-companies/166cf4b3-0c66-4be2-9c96-6b4e52903068; See also Complaint, Chicago v. American Petroleum Institute, 2024-CH-01024 (Cir. Ct. Cook County, IL Cnty. Dep’t, Ch. Div. Feb. 20, 2024).

[42] Complaint p. 1, Chicago v. American Petroleum Institute, 2024-CH-01024 (Cir. Ct. Cook County, IL Cnty. Dep’t, Ch. Div. Feb. 20, 2024).

[43] Chase, supra note 41; See also Chicago v. American Petroleum Institute, pp. 4-8.

[44] Id.; See also Chicago v. American Petroleum Institute, pp. 2-3.

[45] Id.

[46] Id.

[47] Id.

[48] Chicago v. American Petroleum Institute, p. 140.

[49] Nosek, supra note 2, at 744.

[50] Id.

[51] Id.

[52] According to the docket for the Clerk of the Circuit Court of Cook County, Illinois, last accessed on May 3, 2024, the majority of the named defendants, including API, Shell, Exxon Mobil, Phillips 66, Conoco, Chevron and BP, were served on March 6, 2024.

[53] Order, Chicago v. American Petroleum Institute, 2024-CH-01024 (Cir. Ct. Cook County, IL Cnty. Dep’t, Ch. Div. Feb. 20, 2024).

[54] The 2007 case Nosek is referring to is Massachusetts v. Environmental Protection Agency, where the EPA’s authority to regulate emissions was in dispute. Nosek, supra note 2, at 741.

[55] Chase, supra note 41.

[56] Minnesota by Ellison v. American Petroleum Institute, 63 F.4th 703 (8th Cir. 2023).

[57] Id.

[58] Id. at 708.

[59] Id.

[60] Id.

[61] Id.

[62] Id. at 710.

[63] Id.

[64] Id.

[65] Id. at 713.

[66] Id. at 711.

[67] Id.

[68] Rhode Island v. Shell Oil Products Co., L.L.C., 35 F.4th 44, 60 (1st Cir. 2022).

[69] Id. at 61.

[70] Id. at 62.

[71] City of New York v. Chevron Corporation, 993 F.3d 81, 88 (2d Cir. 2021).

[72] Id.

[73] Id.

[74] Id. at 85 and 91 (emphasis added).

[75] Id. at 91.

[76] Id. at 98.

[77] Id. at 86.

[78] DC v. Exxon Mobil Corporation, et al., 89 F.4th 144, 147 (D.C. 2023).

[79] Id. at 148.

[80] Id.

[81] Id. at 150.

[82] Id. at 149.

[83] Id. at 151.

[84] Id.

[85] Id. at 151-52.

[86] Id. at 154.

[87] Id. at 148.

[88] Id. at 155-56.

[89] Id. at 156-57.

[90] Complaint p. 8, Chicago v. American Petroleum Institute, 2024-CH-01024 (Cir. Ct. Cook County, IL Cnty. Dep’t, Ch. Div. Feb. 20, 2024) (emphasis added).

[91] Id.

[92] Juliana v. U.S., 217 F.Supp.3d 1224, 1265 (D. Or. 2016).

[93] Nosek, supra note 2, at 786-87.

[94] Juliana, at 1235.

[95] Id. at 1234.

[96] Id. at 1235.

[97] Id. at 1241.

[98] Juliana v. U.S., 947 F.3d 1159, 1171 (9th Cir. 2020).

[99] Id. at 1175.

[100] Id.

[101] In her discussion, author Grace Nosek discusses at length the behavioral experts’ advice for appealing to energy consumers who are frequently complacent about increasingly destructive climate forces resulting from climate change. Nosek, supra note 2.

[102] Budryk, supra note 38.

[103] Id. (emphasis added).

[104] American Petroleum Institute v. Cooper, 681 F.Supp.2d 635, 638 (E.D.N.C. 2010).

[105] Id. at 645.

[106] Id. at 643.

[107] Id.

[108] Id. at 645.

[109] Id. at 642.

[110] Id. at 653.

[111] Id. at 656.

[112] American Petroleum Institute v. Johnson, 541 F.Supp.2d 165, 170 (D.D.C. 2008).

[113] Id.

[114] Id. at 171.

[115] Id. at 173.

[116] Id. at 170.

[117] Id. at 172-73.

[118] Id. at 189.

[119] American Petroleum Institute v. E.P.A., 683 F.3D 382, 390 (C.A.D.C. 2012).

[120] American Petroleum Institute: API Files Legal Challenge to Smallest Offshore Oil and Gas Leasing Program in U.S. History (last accessed May 6, 2024), https://www.api.org/news-policy-and-issues/news/2024/02/12/api-files-legal-challenge-to-smallest-offshore-oil.

[121] Cathy Landry, API Challenges Biden Administration’s 5-year OCS Lease Program in Court, Oil & Gas Journal (February 12, 2024), https://www.ogj.com/general-interest/government/article/14305036/api-challenges-biden-administrations-5-year-ocs-lease-program-in-court.

[122] Niina H. Farah, EPA Rule Tees Up Legal Battle Over Federal Climate Authority, E&E News by Politico (March 11, 2024), https://www.eenews.net/articles/epa-rule-tees-up-legal-battle-over-federal-climate-authority/.

[123] Id.

[124] American Petroleum Institute v. E.P.A. at 386-87 (emphasis added).

[125] Budryk, supra note 38.

[126] Juliana, at 1164.