Lawfare has grown to be a huge problem. If a set of activists cannot win an election or get a favorable bill passed, they find and run to a sympathetic court. An additional emerging form of lawfare has now taken root in America: local governments and states suing domestic energy producers over their alleged role in climate change. These campaigns are sold as accountability, but they also threaten the strategic foundation of American foreign policy.
Energy is not just another sector of the economy. It is the engine of diplomacy and the backbone of military power. Retired Gen. Richard B. Myers and retired Adm. Michael G. Mullen recently reminded the Supreme Court that petroleum products supplied by American companies “have been critical to national security, military preparedness, and combat missions.” They stressed that “achieving energy security is a prerequisite for national security” and warned that unilaterally stripping the United States of higher-performing fossil fuels would “weaken our armed forces while relatively strengthening those of our adversaries.”
That warning should resonate far beyond the courtroom. America’s diplomatic leverage depends on affordable and reliable energy. Yet climate litigation and new climate superfund schemes attempt to regulate global emissions through a patchwork of state liability theories.
Myers and Mullen caution that such efforts “risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”
That balance is already under strain. In a recent court declaration, Deputy Secretary of State Christopher Landau warned that a state climate superfund law “directly conflicts with U.S. foreign policy in multiple respects” and “harms the federal government’s capacity to speak with one voice when conducting commercial and political relations with foreign governments on issues such as climate change, regulation of greenhouse gas emissions, energy production, and national security.” He cautioned that these harms would only grow if other states followed suit.
State-by-state litigation and retroactive liability schemes do more than raise costs for producers and consumers. They fracture the coherence that U.S. diplomats rely on when they sit across the table from foreign counterparts. Climate change is a global problem that crosses borders, and the Constitution entrusts the federal government, not local courthouses, with the responsibility to negotiate and implement national and international strategies. Allowing dozens of juries to impose sweeping damages for worldwide emissions invites foreign retaliation, complicates trade relations, and weakens America’s position in multilateral negotiations.
The national security implications are just as serious. Myers and Mullen described fossil fuels as “essential for fueling the United States military around the world.” The Department of War is the single largest institutional buyer of fuel in the country. Litigation that constrains domestic production, drives up prices, or chills investment in refining capacity ultimately reverberates through the entire defense supply chain. Mullen captured the priority clearly when he said that “energy security needs to be one of the first things we think about, before we deploy another soldier, before we build another ship or plane.”
It is unrealistic to think that a maze of conflicting state court rulings can coexist with a coherent national energy strategy. Allies that depend on American energy exports would face higher costs and greater uncertainty, while competitors and adversaries would move to fill the gap and gain leverage.
None of this means the United States should stop trying to develop cleaner and more efficient technologies. It means that those choices belong with elected officials in Congress and the executive branch, not with trial lawyers and state and local judges. Myers and Mullen summed up the concern: This “subset of cases” is troubling because of “its sheer scope and its transparent attempt to substitute parochial judgments for those of the national, elected and appointed actors to whom the Constitution commits domestic and international policy making.”
Energy security is not a partisan slogan. It is the condition for American strength abroad. Climate lawfare that targets American energy producers may please activists in the short term, but over time, it will raise costs for families, disrupt carefully balanced foreign policy, and weaken national defense. America cannot defend freedom abroad if it cannot fuel itself at home. Courts should keep that simple fact in mind before they allow climate litigation to rewrite the nation’s energy and foreign policy from the bench.
