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Last year, the United States sued the State of Michigan, seeking a preemptive court order preventing Michigan from filing suit against firms in the “fossil fuel industry”. Michigan moved to dismiss, arguing that the case was not ripe and that the United States did not have standing. What follows is from the first paragraph of the Court’s opinion. No points for guessing correctly which way the Court ruled:
"The federal government alleges that the Michigan
Defendants may bring certain unspecified claims, against certain
unspecified non-party defendants with some connection to the
“fossil fuel” industry, at an unspecified point in the
future, and that a
subset of those unspecified claims may be preempted by one or more
federal laws, causing a cascading series of injuries to the federal
government."
The Court went on to note that:
"The Amended Complaint alleged that the Michigan Defendants were simply investigating potential litigation strategies. The federal government is the party that filed this preemptive lawsuit. The federal government is the party seeking a declaration that a broad category of theoretical “state law claims [are] unconstitutional”. The federal government bears the burden of establishing subject-matter jurisdiction, not the Michigan Defendants. The federal government, not the Michigan Defendants, must show that this dispute arises in “a concrete factual context[,] concern[s] a dispute that is likely to come to pass,” and does not turn “on contingent future events that may not occur as anticipated, or indeed may not occur at all.” [Citations omitted.] "
As you probably inferred, the case was dismissed as unripe and because the United States did not demonstrate that it had standing. And while criticizing the government’s position in this case may be like shooting fish in a barrel, it is worth exploring why the United States filed this action, instead of just waiting until Michigan had filed its version of climate change litigation, when the United States could have sought an injunction against real claims, rather than hypothetical ones.
In answering this question, it’s worth noting a difference between this administration and the first Trump administration in its approach to litigation. I don’t think that I’m the only observer who concluded that the first Trump administration didn’t even seem to care whether it prevailed in court. Instead, the administration seemed to use litigation simply as an opportunity to tweet something that would play to its base. This time around, on the other hand, the Trump administration’s approach to litigation seems strategic and it is very much playing to win.
If so, why did the United States bring a case that its lawyers had to know it was almost certain to lose? The obvious inference is that the United States is hoping this type of litigation will have an in terrorem effect, making states think twice before opposing the administration, knowing that the federal government will fight them every step of the way, and force them to incur significant transaction costs to pursue their legal claims against the federal government and/or their perceived allies.
It's not obvious to me that the Trump administration’s strategy will work, but I think it’s very likely that the administration will indeed fight state and local government climate efforts every step of the way. And at least the administration will always have material to tweet about.
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