By Benjamin Zycher

The Office of the Solicitor General — part of the Department of Justice —was created by the Statutory Authorization Act of June 22, 1870. The Act states that there shall be an officer “learned in the law,” to be called the Solicitor General, to assist the Attorney General in the performance of his or her duties. The “mission of OSG is to represent the interests of the United States before the Supreme Court and to oversee appellate and certain other litigation on behalf of the United States in the lower federal and state courts.”

The term “interests of the United States” is not defined in the Act, and it is obvious that any administration has an interest in keeping it undefined so as to keep its options open with respect to its future positions on legal questions that emerge. Can anyone believe that the political interests of a given administration will not affect its positions on “the interests of the United States? Those positions might be wholly inconsistent with the interests of the U.S. economy or citizenry or taxpayers or the many other groupings that could be subsumed under the heading “interests of the United States,” as distinct from the political interests of the current administration.

Which brings us to the climate case that the U.S. Supreme Court soon will decide as to whether to grant certiorari: Sunoco LP ET. AL. v City and County of Honolulu, Hawaii, ET. AL. In a nutshell: The City and County of Honolulu, pursuing litigation against the energy producers for — don’t laugh — having knowingly caused the purported climate crisis, won a ruling in the Hawaii Supreme Court to the effect that federal law does not preempt state/local legal actions. Accordingly, the Honolulu lawsuit was directed by the Hawaii Supreme Court to proceed in state court under Hawaii state law rather than federal law, despite several contrary rulings in federal courts that claims arising from greenhouse gas emissions are the purview of federal law and Congress.

The OSG has entered the case as an amicus curiae, but what is notable is that nowhere in its brief does OSG tell us what the “interest of the United States” is in the context of this case. Instead, the OSG brief merely asserts that it is in the interest of the United States that the “petitions for writs of certiorari should be denied,” because “this Court’s resolution of the federal issue ‘can await final judgment [after the case works its way through the Hawaii and federal courts] without any adverse effect upon important federal interests.’”

The OSG takes this position despite admitting (page 12) that “petitioners may ultimately prevail on their contention that respondents’ claims are barred by the Constitution — specifically, the Interstate and Foreign Commerce Clauses, the Due Process Clause, and federal constitutional structure — to the extent the claims rely on conduct occurring outside Hawaii.” Indeed, the OSG cites a precedent to the effect that “principles of state sovereignty and comity” mean “that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.” No one claims that the ordinary business operations of the fossil producers — the production and sale of fossil fuels — was unlawful.

Nor does OSG argue — any such argument would not pass a laugh test — that “awai[ting] final judgment” would fail to create enormous costs for the fossil producers and for the economy as a whole. Instead, OSG argues implicitly that litigation inconsistent with “the Interstate and Foreign Commerce Clauses, the Due Process Clause, and federal constitutional structure” would not affect the “interests of the United States.” Seriously?

Put those constitutional issues aside. Do the “interests of the United States” not include national energy policies and the aggregate cost of fuels, employment, the effect of the Hawaii and similar litigation on national wealth, international trade flows for the U.S., and numerous other major parameters of U.S. economic performance? Do they not include a forced substitution of one set of environmental impacts attendant upon the use of fossil fuels with another set caused by the available alternatives? As the costs of energy rise hugely but unevenly across the country, do the “interests of the United States” not encompass the large resulting economic shifts and dislocations? Etc.

The Supreme Court should grant certiorari on this case. There is a clear conflict between several federal court rulings, specifically and most clearly the Second Circuit’s dismissal of New York City’s virtually identical lawsuit in 2021and the ruling by the Hawaii Supreme Court. Both court rulings reveal a conflict on the issue of whether federal law precludes claims brought under state law and whether a given state may apply its laws to address purported injuries caused by emissions from another state. Moreover, the Hawaii Supreme Court decision clearly is incorrect: Interstate emissions, international emissions, and negotiations with foreign governments inherently are issues for the federal government to address.

Back to the OSG amicus brief: It is a purely political document, reflecting the Biden administration efforts to force a substitution of expensive and unreliable unconventional energy in place of fossil fuels that have proven competitively superior for over a century. The arguments that the OSG’s brief presents have nothing to do with “the interests of the United States,” notwithstanding the various assertions presented therein. A grant of certiorari in this case implicitly will send a signal that the OSG arguments are poor and that future such briefs from OSG should substitute rigor in place of political posturing. That alone would be a real service for the true interests of the U.S.

Benjamin Zycher is a senior fellow at the American Enterprise Institute. 

This article was originally published by RealClearEnergy and made available via RealClearWire.

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