A pair of lawsuits filed on Wednesday signal a major shift in strategic positioning by the U.S. Department of Justice, headed by Attorney General Pam Bondi, as it relates to a long running lawfare campaign targeting fossil fuel companies. While some critics said the actions are unprecedented, they represent a key element of the overall Trump administration approach to its energy and climate policy agenda.
Targeting Climate-Fueled Lawfare
The lawsuits targeting the states of Hawaii and Michigan, respectively, seek to prevent them from suing for damages related to emissions and climate change allegations from oil and gas companies operating within their states. Officials in both states had announced their intentions to file such suits but had not yet done so as of the time the DOJ actions were filed on Wednesday.
In Michigan, the DOJ sued the state, along with Governor Gretchen Whitmer, and state Attorney General Dana Nessel, both of whom are Democrats. The filing had to come as a bit of a blow to Gov. Whitmer, who has appeared to be positioning herself as something of a bridge builder between her party and the Trump administration in recent weeks. Whitmer had just spoken at a Donald Trump rally held in her state on Tuesday, where President Trump was celebrating his first 100 days in office. She said she had not intended to speak at the event but had little choice after being singled out and asked by the President to say a few words.
Nessel, by contrast, has been leaning in against oil and gas industry interests in her state and aligning herself with the left wing of the party. Nessel signaled her intent to engage in this type of litigation in May, 2024, when she published a request for proposals soliciting bids from attorneys to represent the state in court. She selected three firms out of that process, including the San Francisco-based Sher Edling firm, which has led the lawfare effort to recruit states and cities to file similar lawsuits over the past few years. Nessel has also helped lead the effort to oppose Enbridge Energy’s Line 5 pipeline, which would bring Canadian oil into Michigan via a route that goes underneath the Straits of Mackinac.
The DOJ filed a near-identical action in Hawaii, naming the state, along with Governor Josh Green, who had said in an interview earlier in the week that he planned to file his state’s lawsuit on Thursday. Attorney General Loio Kuhina was also named individually.
“They have to pay their share because climate change and the climate impact is definitely connected to generations of extra fossil fuel that’s been burned,” Gov. Green told KHON Channel 2 in Honolulu in his interview, referring to oil and gas companies who have operated in the state for decades.
Hawaii currently obtains about 80% of its energy consumption from oil and gas, per the U.S. Energy Information Administration (EIA). A Hawaii law enacted in 1985 emphasizes the key importance of oil and gas to the state’s economy and well-being, stating in part that, “The legislature finds that adequate supplies of petroleum products are essential to the health, welfare, and safety of the people of Hawaii, and that any severe disruption in petroleum product supplies for use within the State would cause grave hardship, pose a threat to the economic well-being of the people of the State, and have significant adverse effects upon public confidence and order and effective conservation of petroleum products.”
At the same time, the state has a more recently enacted law on the books that will require it to generate 100% of its electricity from renewable energy by 2045. But the state generated just 31% of its power with renewables in 2023. Most of the remaining 69% is generated in power plants that run on fuel oil.
Slowing Lawfare By Asserting Federal Preeminence
The DOJ actions, filed in federal district courts in each state, seek to assert the federal government’s preeminent authority as it applies to regulating air quality under the Clean Air Act. In both filings, DOJ said the Clean Air Act “creates a comprehensive program for regulating air pollution in the United States and displaces the ability of States to regulate greenhouse gas emissions beyond their borders.”
“At a time when States should be contributing to a national effort to secure reliable sources of domestic energy,” Hawaii and Michigan are “choosing to stand in the way,” the DOJ complaints said.
Michael Gerrard, founder and faculty director of the Columbia University Sabin Center for Climate Change Law, told the AP that DOJ’s intervention into the states’ actions before they had been filed is “highly unusual,” adding, “What we expected is they would intervene in the pending lawsuits, not to try to preempt or prevent a lawsuit from being filed. It’s an aggressive move in support of the fossil fuel industry.”
That may be true, but from the DOJ’s perspective, it is also a move to protect the federal government’s longstanding stature as the pre-eminent authority on air regulation, along with other aspects of constitutional law. The complaints filed Wednesday also contend that the pending state lawsuits would “discriminate against interstate commerce facially, in practical effect, and in purpose by targeting commercial activity—fossil fuel extraction and refining—that occurs primarily if not exclusively in States other than [Hawaii or Michigan], including Texas, New Mexico, Louisiana, West Virginia, Pennsylvania, Oklahoma, and North Dakota.”
Elsewhere, the DOJ complaint argues, “[t]he financial burdens of” the states’ pending lawsuits would “increase the United States’ costs for purchasing fuels and threaten revenue from federal leasing.”
Where The Lawfare Battle Goes From Here
Though unusual, the action by Bondi’s DOJ makes sense when considered in the context of the overall Trump approach to meeting his goal of reestablishing what he calls American Energy Dominance. The agenda revolves around not just reversing the energy and climate policies of the Biden presidency, but cutting back on permitting and regulatory hurdles, and other impediments to rapid progress.
The highly organized, targeted lawfare campaign this week’s actions seek to slow represents one such impediment in the eyes of Trump and his team. It is thus important to understand that these DOJ lawsuits are not a one-off, but a key element of the overall strategy.
