by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Progressives can’t get their radical policy agenda enacted through the Constitution’s democratic processes. That is why the Biden administration mobilizes its agencies to bypass Congress and unilaterally impose major policies—especially energy and climate rules—by executive fiat. Fortunately, the Supreme Court has pushed back, holding that agencies must show clear congressional authorization for significant new policies.
In response, progressive activists are using another tactic, this time trying to evade not only Congress but also the federal courts. They are filing massive lawsuits against energy companies in state courts, trying to set national climate policy under the guise of holding companies liable for polluting. Evidently unsatisfied with the Environmental Protection Agency as their energy policy maker, activists want to make blue-state judges into energy-policy czars.
Minnesota Attorney General Keith Ellison wants a Minnesota judge to influence national climate policy through the state’s tort laws. In June 2020, Mr. Ellison sued oil companies in a state court, asking the judge to strip Exxon Mobil and Koch Industries of “all profits” made from alleged “unlawful conduct,” which the suit defined as allegedly deceptive trade practices, fraud, and lack of public disclosures. Mr. Ellison further asked the judge to order oil companies to “fund a corrective public education campaign in Minnesota relating to the issue of climate change, administered and controlled by an independent third party.”
The case is clearly an attempt to make national energy policy through state case law. As Judge David Stras of the Eighth U.S. Circuit Court of Appeals wrote in a concurring opinion in March, “there is no hiding the obvious, and Minnesota does not even try: it seeks a global remedy for a global issue.” Judge Stras said Minnesota’s clear aim is to “change the companies’ behavior on a global scale.”