Supreme Court Has Chance To Deliver Victory For America’s Energy Workers

The Supreme Court has a chance this term to confront one of the most troubling trends in American law: the systematic weaponization of our legal system against American energy production through government-sponsored lawsuits. 

Two landmark cases, Chevron v. Plaquemines Parish and Suncor v. Boulder County, offer the Court an opportunity to restore constitutional balance and protect American energy workers, our economic interests, national security and the fundamental rule of law.

For over a decade, Louisiana has engaged in a dangerous experiment: privatizing government enforcement by handing sovereign powers over to outside trial attorneys operating under fee-shifting arrangements. The result is sprawling litigation backed by state and local governments targeting hundreds of energy producers. 

The suits allege that Louisiana’s coastal erosion issues stem from energy production dating back to the 1940s, much of which was conducted under federal permits, contracts or wartime directives in support of America’s World War II efforts.

Defendants have sought to remove these cases to federal court under the federal officer removal statute, but a growing split among federal circuit courts has led to a high-stakes game of ping-pong with the coastal suits bouncing back and forth between state and federal courts for years. The Supreme Court’s intervention is essential to resolve the Circuit split and ensure that federal contractors, especially those acting under wartime directives, are shielded from state court bias.

After a $745 million jury verdict earlier this year, over 40 similar suits threaten billions in additional costs. 

A 2019 Pelican Institute economic impact report estimated that Louisiana’s economy has lost between $44 million and $113 million annually since these suits began. More than 2,000 jobs disappeared in just the first two years of litigation, and it’s estimated state and local governments have forfeited up to $22.6 million annually in royalty revenue—money that could have funded schools, roads and coastal restoration.

The structural problems underlying these lawsuits are even more concerning than the economics. 

Through a “joint prosecution agreement” with trial lawyers representing the parishes in these suits, Louisiana’s government agreed not to endorse any substantive defenses, regardless of merit. In other words, the state outsourced its investigative and prosecutorial powers to private attorneys who stand to collect hundreds of millions in fees. 

As Louisiana’s former Department of Natural Resources secretary admitted under oath, the state abandoned its administrative enforcement process entirely and began “farming out” the government’s responsibility to a small group of politically active private litigators.

This arrangement violates basic constitutional principles. 

When private lawyers are empowered to assert legal claims on behalf of the government while simultaneously funding the political campaigns of the elected judges who decide them, the appearance of impartial justice is compromised. According to state campaign finance reports, the outside counsel spearheading these lawsuits collectively contributed over $2.5 million to help elect Louisiana judges and justices since 2012. This is exactly what the federal officer removal statute was designed to prevent: local tribunals sitting in judgment of private parties acting on behalf of the federal government, especially where those tribunals have a direct financial incentive to rule against those parties. 

The Trump administration agrees. In an amicus brief to the Supreme Court, U.S. Solicitor General John Sauer affirmed that the case belongs in federal court. 

“[H]ere, removal is appropriately tied to the kinds of connections that risk state-court interference with federal operations,” Sauer wrote. “During World War II, the oil industry operated as a unique public–private partnership with a special wartime agency, the Petroleum Administration for War, overseeing the industry’s operations in service of the Nation’s shared wartime mission. 

That special relationship supports the removal of these suits challenging wartime production practices.” 

Unfortunately, this flawed approach is not unique to Louisiana. In Suncor v. Boulder County, the Pelican Institute joined with the Manhattan Institute and others to argue that Boulder’s attempt to apply Colorado’s state tort law to regulate global greenhouse gas emissions violates constitutional principles of horizontal federalism. 

Allowing such suits to continue would empower one state to dictate energy policy for the entire nation. The Constitution wisely grants this authority to Congress, not state and local governments.

If the Court allows this litigation model to stand, it signals to every state that they can circumvent democratic processes, federal authority and constitutional limits by hiring outside lawyers to craft new and novel legal claims. 

Today, it’s energy companies facing retroactive liability for federally authorized activities. Tomorrow, it could be any industry that falls out of political favor or popular opinion.

The founders designed our constitutional system to prevent local bias against interstate commerce, concentrated prosecutorial power in private hands and the use of courts to accomplish what legislatures cannot. 

America’s prosperity has always depended on the rule of law, not the rule of lawyers. The Supreme Court should reverse both decisions decisively, sending a clear message that our constitutional system will not tolerate the transformation of justice into a business model. Our economy, national security and energy future depend on it.

Melissa Landry is Vice President of the Pelican Institute for Public Policy, Louisiana’s leading free-market think tank.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.