In recent years, about three dozen states, municipalities and indigenous tribes have sued fossil fuel producers from whom they seek compensation for climate harms the claimants allege to have been caused by carbon pollution and/or corporate deception. So far, the results in courtrooms across the country have been mixed. Some courts have held that the claims are preempted by federal common and/or statutory law while others have held that the claims are not federally preempted and may proceed under state law theories of public nuisance, fraud, and/or negligence. Fossil fuel defendants have twice petitioned the U.S. Supreme Court to review climate accountability cases but were refused both times.
Now, fossil fuel defendants hope for tort immunity in climate cases through White House intervention. On April 8, 2025, President Trump issued an Executive Order, “Protecting American Energy from State Overreach,” declaring all such cases, whether pending or still in planning stages, to be invalidated under federal and/or constitutional authority. The order directed Attorney General Pam Bondi to “identify all State and local laws, regulations, causes of action, policies, and practices (collectively, State laws) burdening the identification, development, siting, production, or use of domestic energy resources that are or may be unconstitutional, preempted by Federal law, or otherwise unenforceable.”
Pursuant to that directive, the Department of Justice promptly filed actions against the states of Hawaii and Michigan that seek to prevent them from pursuing climate accountability actions that they had been preparing to file. “These burdensome and ideologically motivated laws and lawsuits threaten American energy independence and our country’s economic and national security,” Attorney General Pamela Bondi said in a statement from the Justice Department, noting the office hopes to stop “these illegitimate impediments to the production of affordable, reliable energy that Americans deserve.”
These efforts by the president and his administration to quash cases that several courts (including the Supreme Courts of Hawaii and Colorado) have ruled are valid causes of action that can proceed under relevant state laws now present several provocative legal issues to be decided, including (not exhaustively) questions about separation of powers between the executive and judicial branches of government, state sovereignty under Article X of the U.S. Constitution, the reach and limits of executive federal preemption, and matters of procedural and substantive due process.
Whereas the president claims climate accountability actions hinder his energy policy and run afoul of his declaration in January 2025 of a national energy emergency for which he demanded increased fossil fuel production and supply, the claimants deny that their cases interfere with any such objectives. According to Karen Zraick’s New York Times article, “An Effort to Kill Off Lawsuits Against Oil Giants Is Gaining Steam,” claimants contend they seek to hold fossil fuel producers liable for violations of state tort laws, e.g. for alleged misrepresentations to the public about foreseeable climate harm from defendants’ fossil fuel activities, rather than seek to set or modify federal energy regulation or policy.
In other words, claimants generally assert that fossil fuel companies can produce all the oil, coal and natural gas they want, but cannot with impunity lie about how their doing so has caused and will cause enormous climate-related loss of lives, property and public resources.
How will these matters be decided? Of course, only time will tell. But we are undoubtedly at an inflection point in a conflict between state sovereignty and executive power, the result of which may determine who will pay the enormous running tab for fossil-fuel related climate harm.
