Biden Justice Dept. Sides With Activists on Key Jurisdictional Question Related to Climate Litigation

Supreme Court must now decide whether to follow the law and protect consumers – or follow politicized opinion handed down by Biden DOJ

On Thursday, the Biden administration’s Department of Justice (DOJ) issued its long-awaited amicus brief on whether the Supreme Court should rule on a core jurisdictional question in the City and County of Boulder and the County of San Miguel’s climate lawsuit, and in dozens of other similar lawsuits across the country. After pressure from activists to fulfill a campaign pledge to “strategically support” climate litigation, the position argued by the Biden DOJ is a predictable nod to activists, but it’s hardly an endorsement of the lawsuits.

At issue is the basic question of whether these cases (which ostensibly seek to tackle an issue with global implications) should be heard in federal or state court. The plaintiffs – states and municipalities across the country – have pushed for their cases to be heard in state court, while the energy companies have rightfully argued that federal courts exclusively should hear claims related to interstate, and international, greenhouse gas emissions.

Last year, the energy companies named in the Colorado municipalities’ lawsuit petitioned the Supreme Court to review the jurisdictional issue in the case. Ironically, the lawsuit lacks support in Colorado even among Democratic officials, including Governor Jared Polis and Attorney General Phil Weiser.

The newly released Solicitor General brief stops short of a clear endorsement of climate litigation; instead, it simply agrees with, and references the decisions of, the several circuit courts that have ruled in favor of the states and municipalities on this jurisdictional issue.

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