Why State Courts Should Not Set National Energy Policy
Judges are improperly turning courts into bastions of climate activism.
The Framers of our Constitution never intended for officials in Boulder, Colo., or any city, to set the energy and climate policy for the entire nation. The Supreme Court may have a chance to bolster the principle of federal supremacy over truly nationwide problems in a case pending for review, Suncor Energy Inc. v. Boulder.
Boulder’s lawsuit uses tort law — a body of state-made law that addresses accidents and noncriminal harms — to reshape national energy policy. After failing to push sweeping Green New Deal–style mandates through Congress, climate activists have turned their efforts toward the judicial system. Dozens of states and cities have filed copycat lawsuits that incredibly claim that energy companies have sold their product to unwitting consumers without disclosing the harms of climate change. These flimsy claims tempt judges into indulging their personal political preferences and imposing restrictions on energy that the political system has already rejected. This is not the proper use of the courts, but an effort to use the judiciary to sidestep public debate and democratic checks and balances.
Constitutionalism
Amicus Brief: Hon. William P. Barr and Hon. Michael B. Mukasey in Support of Petitioners
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Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott
Judicial review and originalism serve as valuable commitment mechanisms to enforce future compliance with a political bargain.
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State Courts Can’t Run Foreign Policy
Suncor is also a golden opportunity for the justices to stop local officials from interfering with an industry critical to foreign and national-security policy.
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The Administrative State’s Sludge
Congress has delegated so much power across so many statutes that it’s hard to find a question of any public importance to which some agency cannot point to policymaking authority.
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