“It is a message that makes sense to young people if you can get them to hear it.” — Economist Paul Prentice on TABOR. (Gazette file)

The U.S. Supreme Court recently signaled a shift in climate litigation aimed at energy producers, allowing the suits to proceed in state rather than federal, courts across the country. This is bad news for energy producers and consumers.

The Supreme Court, in a unanimous decision written by the late Justice Ginsburg, previously found that climate change policy is not under the purview of federal courts and is better suited for Congress. State courts conversely are held to no such standard and are generally viewed as friendlier venues for winning massive awards against energy companies.

There is no legal basis for blaming energy manufacturers for purported damages from climate change. Rather, activist groups are looking to redefine environmental policy through the courts. Their stated goal is to not only make manufacturers pay for alleged damages, but also to increase prices for consumers.

Nearly two dozen states, cities, and municipalities across the country are suing major energy companies, in an attempt to hold them liable for damages that they allege were caused by climate change. Three localities in Colorado — Boulder County, San Miguel County, and the city of Boulder — have joined the litigation effort.

Given the global nature of emissions it is impossible to assign blame to a few energy producers in just one country for alleged damages caused by climate change. Everyone across the globe uses energy, and there are energy producers in nearly every country in the world. By that logic, everyone is responsible for causing “climate change.”

The architects of the Colorado litigation have said: “Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.”

Colorado residents rely on energy products to heat their homes, fuel their vehicles, and live their daily lives. Increasing energy prices significantly would be financially devastating — especially to low income and minority communities. Since Colorado has a major energy industry presence, if these lawsuits are successful the statewide economic costs would cause tremendous harm.

The most recent estimates have found that the energy industry creates enormous economic benefits for Colorado, generating $13.5 billion in annual economic activity and supporting about 90,000 jobs. The industry also provides nearly $1 billion in tax revenue, which is about 80% of the money that the school trust pays to Colorado schools.

Ultimately, courts are not the appropriate venues for setting environmental policies on such a scale, legislatures are. Former Attorney General of Colorado and U.S. Secretary of the Interior, Gale Norton, noted, “By establishing rules that punish oil and gas companies, such cases can tilt the direction of energy development … it is the type of fundamental policy that should be determined by elected officials, not by state court judges.”

Colorado policymakers have already shown that they can advance productive and innovative ways to reduce emissions — the main culprit environmentalists blame for climate change — without the need for such counterproductive lawsuits. For example, in 2021 the Legislature passed a bill with broad bipartisan consensus to “Promote Innovative and Clean Energy Technologies in the Electric Utility Sector.”

Instead of litigating against the very businesses that are helping to create the sustainable future that environmentalists claim they are fighting for, these local governments should find ways to expand private incentives that will help support a cleaner energy future.

Emissions in the American power sector have dropped by 35% since 2005, mainly due to investments made by utility providers to switch to cleaner burning natural gas and other alternative fuel sources. As the demand for newer and cleaner energy sources continues to grow, the private sector will continue to innovate to meet that demand.

Paul Prentice is a senior fellow at the Independence Institute.

Equipment used to capture carbon dioxide emissions is seen at a coal-fired power plant owned by NRG Energy where collected carbon will be used to extract crude from a nearby oil field Jan. 9, 2017, in Thompsons, Texas.

Reuters file