The solicitor general climate change briefs that didn’t bark

On Dec. 10, the solicitor general filed two briefs in climate change cases, supporting a continuation of a chaotic flurry of state climate change litigation across the country. Strikingly absent from each solicitor general brief is any effort to assert the peculiar interests of the United States government.  

Yet, that is the solicitor general’s one job when it is asked by the U.S. Supreme Court to file a brief in a case where the United States is not a party. They had one job, and they failed to do it. 

This failure exposes the weakness of the Biden administration’s position supporting the climate change plaintiffs. And the absence of any effort to consider several key federal interests leaves the door wide open for a persuasive and influential amended brief from the incoming Trump administration solicitor general next January. That corrective brief can be accurately stylized as simply addressing fatal errors of omission necessitating an alternative conclusion.

When the U.S. Supreme Court invites the solicitor general to “file a brief in this case expressing the views of the United States” — as the court did last June in both Alabama et al. v. California et al. and in the related petitions for certiorari in Sunoco LP v. City and County of Honolulu and Shell PLC v. City and County of Honolulu — it usually does so with the anticipation and out of an interest in understanding the peculiar interests of the sovereign in cases where the sovereign interests might be implicated.  

The primary issue in both cases is whether federal law should preclude the initiation and continuation of climate change litigation in state courts based on novel theories of public nuisance, consumer fraud, and other creative claims.

These special concerns of the United States usually include issues of separation of powers, national power or the need for nationwide uniformity, the effective functioning of the federal government and its agencies, potential implications of a case on national security or other major federal policies, statutory interpretation to protect the interests of legislatures, Dormant Commerce Clause protection or free trade federalism and the flow of commerce among the states, budgetary implications, and the like. 

When the court asks the solicitor general to file, it does not usually care to receive or expect just another set of lawyers repeating arguments that any private lawyers could make and that indeed the private lawyers are already making in a case. Yet, that is just about all the court got in the two solicitor general briefs filed this week.  

Goals for a solicitor general brief concluding these state cases should continue would seemingly include comforting the court that ruling that way would not harm the governmental interests of the United States.  

For example, you would expect that a brief of this sort would include a discussion of why allowing a multitude of cases across a multitude of states in an area of transboundary pollution that would normally be controlled by national policy does not usurp federal legislative or executive power and why. There is not a whisper of that in the briefs. 

Instead, the solicitor general brief in the Honolulu case, for example, only focuses on claims of a non-final judgment and claims of the lack of a circuit split — things perfectly well covered by the other briefs. Similarly, the brief in the Alabama case simply doubles down on procedural arguments made by the parties. 

Normally, we would assume that the Supreme Court expects in solicitor general briefs to hear a voice that only the United States can offer, as the United States, when the court reaches out and requests to hear from the United States.

Yet conspicuously absent from these amicus briefs is even an utterance about national security, foreign policy, or energy security concerns that might be implicated by these cases. Again, you would expect that the United States would want to assure the court that it need not concern itself with these matters. 

We would expect that the United States as amicus, and as the one in the best position to understand these potential implications, would offer assurances and express an official view of the United States that, if the court allows the state climate change cases to proceed, there will be no identifiable risk to these fundamentally governmental, and uniquely federal, concerns. 

In a way, the absence of even a nod to these potential concerns is a perfect opening for the Trump administration’s solicitor general to seek leave to file amended briefs in each docket immediately upon taking office.

By granting cert in the Honolulu case, the U.S. Supreme Court has a chance to correct a Hawaii state supreme court decision that oversteps the limits of state authority, trampling on federal prerogatives to set energy policy and control interstate and global pollution. 

It has a chance to protect the separation of powers and preserve the uniformity of national environmental policy through the proper interpretation of the Clean Air Act. It can shield the national security of the United States which could be weakened by lawsuits that disproportionately affect domestic energy producers and impose costs on American consumers.

Issues like energy policy and sensitive decisions about geopolitical issues of climate change require complex balancing decisions that are exclusively within the purview of Congress and federal policymaking authorities — not state and federal courts.  

Thus, shutting down the state cases helps to prevent state courts from handcuffing the federal government as it seeks to negotiate balanced bargains on the international stage that will actually advance climate change solutions.    

These and other defenses of the interests of the United States government have yet received no consideration in the existing, just-filed solicitor general briefs and thus are the perfect arguments counseling reconsideration of the conclusions in those briefs.

The complete absence of consideration within Biden’s solicitor general briefs of any of the sovereign federal interests for which the opinion was requested in the first place is all the Trump Administration should need to explain filing a new brief with a different conclusion. 

The new briefs can simply begin by noting that the prior administration’s briefs were under-analyzed because of their failure to even consider let alone understand the multitude of adverse impacts on the interests of the United States if these state climate change lawsuits can continue unchecked by the court.  

Donald J. Kochan is a professor of Law and the executive director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School.