For decades, big government activists and lawmakers have tried to attack American energy production. They have pushed for tighter regulations at the federal level. They have sued the federal government when it grants leases or permits to energy producers. And they have tried—occasionally succeeding—to impose restrictions on extractive industries, sometimes driving producers out of the state. But there is a new tactic: trying to set national energy policy through the use of state court lawsuits alleging vague injuries related to the mere existence of companies that produce the fossil fuels that power our Nation and other nations worldwide. So, what happens when, instead of working through the democratic process, a state attorney general tries to force nationwide change through the courts?
That’s exactly what’s happening in Minnesota.
In Minnesota v. American Petroleum Institute, Minnesota Attorney General Keith Ellison is suing some of the country’s most productive energy companies—including ExxonMobil and Koch Industries—and even the industry group called American Petroleum Institute asserting that these defendants supposedly misled the public about the impact of fossil fuels on the environment. The lawsuit argues that these companies should be held liable under Minnesota’s state laws for harm done to the climate, even if no one in Minnesota was actually hurt.
But here’s the problem (other than the problem that Minnesotans were not actually hurt): climate policy isn’t something a single state can—or should—dictate for the entire country. Federal laws like the Clean Air Act, however one feels about them, already regulate carbon and other emissions, and courts have consistently ruled that national environmental policy must be set at the nationwide level, not through a complicated patchwork of state court rulings, and not through one state deciding that it can set national policy.
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Unfortunately, Minnesota’s lawsuit is part of a broader trend—states and cities using litigation to impose anti-energy regulations through the courts. They are seeking an unearned windfall, which is contrary to the economic liberty, good governance, and property rights that we fight for here at Mountain States. To be fair, their efforts have had mixed success, with one federal appellate court dismissing a nearly identical case, ruling that federal law preempts state tort claims when regulating emissions. But in Hawaii, the effort succeeded. And in Colorado, a case is pending in the state’s Supreme Court currently, where MSLF is involved.
Consistent with our efforts to fight back against these unwarranted attacks on Americans, Mountain States Legal Foundation (MSLF) has filed an amicus brief in this Minnesota case, along with our partners at the Upper Midwest Law Center, because this case isn’t just about energy policy—it’s about the rule of law. Our Constitution is built on a careful balance of state and federal authority. States often have the power to regulate what happens within their own borders, but Minnesota cannot unilaterally invent the Nation’s climate policy. That’s what Minnesota is trying to do here, and that’s why it’s so important to stop this case before it sets a dangerous precedent.
Our client, Professor John Yoo, is a constitutional and business law scholar who understands what’s at stake. If anti-energy activists are allowed to cripple energy producers, it will affect the entire country’s energy supply. That isn’t how the legal system is supposed to work.
MSLF has long fought against the expansion of the administrative state and government overreach. We’ve seen time and time again how regulatory overreach can crush businesses and erode property rights. But what Minnesota is attempting here is even more troubling—because rather than using government agencies to impose regulations, it’s trying to use the courts to do the same thing—nationwide—through private litigation. If this case is allowed to continue, it won’t stop with fossil fuels. Other industries, from agriculture to manufacturing, could be targeted next.
What’s at Stake?
For our client, Professor Yoo, this case is about ensuring that courts apply tort law correctly. Tort law isn’t meant to be a tool for crafting national policy—it exists to resolve disputes about specific injuries between a party who says he was hurt and the party who allegedly hurt him, not to reshape entire industries.
For all Americans, this case is about protecting the constitutional balance of power. If climate change is a national issue, then it should be addressed at the national level, through laws passed by Congress, not through lawsuits brought by individual states. Allowing Minnesota’s case to move forward would set a precedent that any state or city could use litigation as a way to impose its own version of national policy.
That’s why MSLF and the Upper Midwest Law Center are fighting back. We’re urging the Minnesota Court of Appeals to get involved and ultimately dismiss this case outright. A win here won’t just stop this lawsuit—it will send a clear message that states can’t hijack the courts to impose their own national agendas.