Biden is trying to weaponize the Clean Air Act on his way out of the White House
President Biden’s Department of Justice filed an unusual brief in Sunoco v. Honolulu, urging that the Supreme Court deny review of a petition of certiorari asking whether Honolulu may essentially regulate greenhouse gas emissions for the nation and the world. It reads less like a legal brief and more like a political document favoring environmentalists and mass-tort plaintiffs’ lawyers — two of the Democrat party’s biggest donors and constituencies.
The United States is not a party to the case, but the court requested the solicitor general’s view on this issue with the understanding that the solicitor general’s office is always supposed to provide its best non-political legal position and not advocate on behalf of a political party’s constituencies. The Biden administration apparently disregarded that traditional norm, as it has so many others, and ignored the fact that the DOJ, under both Republican and Democratic administrations, defended federal interests and jurisdiction regarding interstate and international greenhouse gas emissions because no single state should determine the nation’s domestic or foreign policy, and certainly not on behalf of the other states.
For example, the Biden administration knows that the Hawaii Supreme Court conflicts with New York v. Chevron, where the U.S. Court of Appeals for the 2nd Circuit held that federal law precluded similar state law claims. In fact, the 2nd Circuit found that New York state inappropriately “intends to hold the [energy producer defendants] liable, under New York law, for the effects of emissions made around the globe over the past several hundred years.” Furthermore, the 2nd Circuit cited the Supreme Court’s 1987 holding in International Paper Co. v. Ouellette that the Clean Water Act “has been interpreted to permit only state lawsuits brought under the law of the pollution’s source state” and not a different state where the alleged injury occurred.
They also know that Justice Ruth Bader Ginsburg’s 2011 majority opinion in American Electric Power Co., Inc. v. Connecticut held that the Clean Air Act and the Environmental Protection Agency’s resultant actions displaced “any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” She warned that federal courts were inappropriate venues for steering federal policy on global warming issues. In fact, the Obama administration (Neal Katyal was the acting solicitor general) argued those very points in its brief.
Justice Neil Gorsuch’s 2021 majority opinion in BP P.L.C. v. Mayor and City Council of Baltimore vacated the 4th Circuit’s opinion and remanded the question of whether it should be in federal or state court for further review. The Trump Justice Department, under acting Solicitor General Jeffrey Wall, told the court in its brief that Baltimore’s global warming claims were of an “inherently federal nature” and that “[a]ny putative tort claims that seek to apply the law of an affected State to conduct in another State, by contrast, continue to arise under ‘federal, not state, law’ for jurisdictional purposes.”
Thus, the Biden DOJ intentionally ignored existing DOJ and court precedent; ignored the other states that are genuinely concerned Honolulu, through its local tort law, is trying to be America’s primary nationwide energy regulator and thus inhibit other states from enacting their own energy policy preferences; and ignored the fact that the court does not have to reach any constitutional questions beyond following its existing precedent on the basic structural federalism issue that the Clean Air Act preempts Honolulu’s state law claims.
The DOJ should not allow environmentalists and mass-tort plaintiffs’ lawyers to use it to sneak a political agenda into a litigation and misuse public nuisance law. In fact, the DOJ should acknowledge that the plaintiffs’ bar’s repeated misuse of public nuisance as a mass-tort and public policy device is legally wrong and far removed from its original intent, which would apply to a tangible thing that prevents people from using public lands or waters, such as a collapsed, abandoned building blocking a street or a factory illegally dumping chemicals into a river.
Many thoughtful people have credibly shown that the Biden administration weaponized and politicized the DOJ, whether in criminal prosecutions, surveillance operations or environmental litigation. After Jan. 20, 2025, the Trump DOJ must stop such wrongful behavior.
John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.