The Perils of Litigating Climate Change In Partial Courts

Imagine for a minute or two a world without oil. If so, life would be defined by unrelenting drudgery owing to the happy reality that machines powered by oil have long done so much work for us. Absent the mechanization of past and present human effort, it’s no reach to say that eating each day would be much less of a sure thing, access to clean drinking water would be a health-sapping uncertainty, our work would be incredibly primitive and most likely unrelated to our skills, and as for the internet on which you’re reading this opinion piece, forget about it.

The simple truth is that the staggering abundance we in the developed world enjoy is a direct consequence of work divided between man and machine around the world. Which is a reminder that without oil the world would be rather disconnected economically, and by extension desperately poor.

The brutal reality of life without the world’s foremost fuel is difficult to ignore in light of the Supreme Court’s April decision to not weigh in on routine climate change lawsuits brought against oil companies in state and local courts. It had been hoped that the nation’s highest court would demand that these cases be tried on the federal level, thus reducing the odds of friendly judge shopping. By removing itself from the process, the Supreme Court is setting the stage for climate hysterics to search far and wide for the judges most likely to side with their view that oil companies are causing enormous environmental damage, and must be fined as a consequence.

Scarily, the court shopping is not some idle speculation. Coming up in Hawaii is City and County of Honolulu vs. Sunoco LP, et al., a case that will be overseen by Hawaii Supreme Court Chief Justice Mark Recktenwald. Recktenwald’s title might give the impression of august impartiality. Recktenwald clearly wants to give off that impression. As he put it in a 2023 speech, “Our core mission is to decide cases fairly and impartially in accordance with the law.” The chief justice doth protest too much, it seems.

Indeed, his background points to a distinct lack of impartiality, particularly on climate matters. Recktenwald has acknowledged in response to record requests that he gives “educational presentations relating to environmental, energy, and natural resources issues.” Getting more specific, just last month Recktenwald taught a remote course for the National Judicial College titled “Rising Seas and Litigation: What Judges Need to Know About Warming-Driven Sea Level Rise.” Unknown is if there’s more to come. For now, we know Recktenwald has a history of association with those who share his views on climate, and who are allied with plaintiffs in cases meant to soak oil companies.

Please keep Recktenwald’s rather obvious ideological slant in mind with the filing of climate-related cases top of mind. While judges strive mightily at least on the surface to betray an impartial eye, it’s apparent that those bringing cases fully expect the individual viewpoints of judges to inform their judicial decisions. Why else would Sunoco et al be set to defend themselves in Hawaii?

It all speaks to the importance of reining in a judicial strategy that could spiral out of control, and is so doing, could reduce trust in a branch of government that is given reverent life by the imprimatur of impartiality. In other words, if ideology replaces impartiality our courts will no longer be courts.

Much the same, without oil it cannot be stressed enough how much life as we know it would no longer be. This includes a not unreasonable desire among many to do all they can to clean up Planet Earth. Without oil and the global interconnectivity that it uniquely enables, we would be far too poor to spend time improving the environment, let alone finding a so far undiscovered – and cleaner – alternative to oil.

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