New Hampshire has joined a coalition of Republican-led states asking the U.S. Supreme Court to block lawsuits against fossil fuel companies filed by Democratic state attorneys general.
The request, filed May 22, targets five states — California, Connecticut, Minnesota, New Jersey, and Rhode Island — that are pursuing climate change-related damages from oil majors in state courts. Those lawsuits allege oil and gas companies knowingly misrepresented the environmental risk of their products for decades.
But the petition filed by New Hampshire and 18 other states claims that such cases fall under federal jurisdiction because only the federal government can regulate interstate air pollution and emissions. It argues that these cases could make it harder for individual states to make their own energy policy and raise energy costs nationally.
“A few states should not be able to dictate energy policy to the entire country. Their efforts are a threat to our nation’s energy security and our economic prosperity,” said New Hampshire Attorney General John Formella in a statement to NHPR. “This lawsuit is not about denying the existence of climate change or opposing clean energy. This is all about fighting for the rights of Granite Staters who rely on affordable energy to power their homes, businesses, and industries.”
Experts said the legal argument behind the petition is unusual.
“It is basically a group of states going after another group of states and using a rarely invoked procedural tool to go directly to the U.S. Supreme Court to do that,” said Jennifer Rushlow, dean of the Maverick Lloyd school for the Environment at Vermont Law and Graduate School.
Most cases work their way up through lower courts before potentially being heard by the Supreme Court, Rushlow noted. She and other environmental legal experts said the petition looks more like a political maneuver to have these cases heard by the conservative-leaning Supreme Court, which is more likely to be sympathetic to oil and gas companies.
But Rushlow underscored supporters of the oil and gas industry have previously unsuccessfully lobbied the Court to rule on the issue, but it has declined. She said this most recent attempt to get the Court to hear the case “is a bit desperate.”
Brad Campbell, president of the Conservation Law Foundation, criticized New Hampshire’s participation in the lawsuit, describing it as “hypocritical” because the state has previously filed climate accountability lawsuits against producers of PFAs and PCBs.
Unlike some other plaintiffs, which could be motivated by the economic risks of the anti-fossil fuel cases, New Hampshire’s economy does not have a robust oil and gas industry.
“It is hard to think of a reason that isn't nakedly political for Gov. Sununu to go to court and effectively rule out the possibility that the state of New Hampshire, in an appropriate case, could seek from the oil companies the kind of compensatory relief that New Hampshire was actually able to get in the case of PCBs and is trying to get in the case of the forever chemicals,” Campbell said.
This is the second federal environmental lawsuit New Hampshire has filed with other Republican-led states in recent weeks. On May 9, Formella joined 23 other states in a suit against the Environmental Protection Agency’s recently announced regulations governing power plants.
