Against Climate Lawfare

This month, the Breakthrough Institute, with support from the law firm Van Ness Feldman, filed an amicus brief in Lighthiser v. Trump, a suit brought by the climate activist organization Our Children’s Trust (OCT) against the Trump administration’s executive orders on “unleashing fossil fuels.” In our brief, we argue the Ninth Circuit Court should not only affirm the suit’s previous dismissal by the Montana District Court but reject OCT’s claims on substantive as well as procedural grounds.

Breakthrough has long supported action to address climate change and to accelerate the deployment of clean energy technology. So why have we elected to file an amicus brief challenging a lawsuit brought by climate advocates that will almost certainly be rejected by the court anyway?

First, because the case tests a series of claims that the climate movement has persistently made that simply misrepresent the facts. The plaintiffs claim that the Trump administration’s EOs will appreciably increase US greenhouse gas emissions, that this increase in emissions will appreciably increase atmospheric concentrations of greenhouse gases and global temperatures, and that this increase in global temperatures will appreciably intensify weather extremes and other climate impacts that will cause additional harm to the the public. Every step in this logic chain is dubious.

The court room, as opposed to the court of public opinion, requires a much higher standard for both evidence and argument. Wise climate and energy policy, whether pursued through the judicial, legislative, or executive branches, requires some basic fidelity to both climate science and techno-economic reality. This is as true for the climate movement as it is for the Trump administration.

Second, because this suit reveals a strong anti-democratic strain of thought and action that is apparent in the broader strategy that OCT and other climate litigants are pursuing through the courts and is endemic to the climate movement more generally. OCT asks the courts to invent a new constitutional right from whole cloth—a right to a “stable climate” and “livable future”—to overturn policy undertaken by democratically elected policymakers based upon this newfangled constitutional principle, and to require a rapid transition away from fossil fuels by judicial fiat.

Neither concern about climate change nor antipathy toward the Trump administration’s energy dominance agenda and climate skepticism can justify these demands. Rightly or wrongly, there is no right to a livable climate in the Constitution. Climate change is a serious problem but there is no good evidence that climate change, now or in the foreseeable future, threatens a livable climate. Nor is there any well established science that can establish prospectively that Trump administration policies will significantly increase emissions or that an extremely marginal additional contribution to warming that these policies might cause would result in any measurable intensification of climate extremes or impacts.

Energy Forecasts Are Hard, Even About the Near Future

As in prior cases such as Juliana v. United States, lower courts have often dismissed suits like Lighthiser on procedural grounds while largely accepting the plaintiffs’ scientific claims at face value. For this reason, a closer legal examination is overdue.

To establish its claim against the Trump administration, Lighthiser elevates factors that are, at best, minor contributors to the trajectory of emissions, warming, and climate impacts, presenting them instead as dominant drivers. This synecdoche is necessary to sustain the lawsuit’s central claim: that Trump administration policies will increase emissions, accelerate warming, and harm the plaintiffs.

To support this argument, the plaintiffs rely on modeling by Princeton energy systems scholar and our former colleague Jesse Jenkins, projecting that Trump’s executive actions will increase U.S. emissions. Jenkins is an accomplished researcher, but also a prominent climate advocate and architect of Biden-era climate policy. After passage of the Inflation Reduction Act (IRA), he published widely cited projections suggesting the law and related policies would reduce U.S. emissions by 37–41% by 2030 and 43–48% by 2035, with battery electric vehicles exceeding 80% of new light-duty vehicle sales and zero-carbon electricity reaching roughly 90% by 2035.

Soon after the law’s passage, however, Jenkins acknowledged that roughly 80% of those modeled emissions reductions depended on a massive expansion of high-voltage transmission infrastructure. Subsequent work from his laboratory found wind and solar deployment lagging earlier forecasts. In 2022, REPEAT modeling projected roughly 50 gigawatts of solar, 40 gigawatts of wind, and EVs reaching 20% of the new-vehicle market by 2025. Actual figures were closer to 43 gigawatts, 7 gigawatts, and 9%, respectively. Much of this divergence predates Trump’s re-election.

Jenkins has since produced new analyses estimating that Trump policies could add more than 500 million tons of CO2 by 2035. But as with his earlier projections, these analyses depend on highly uncertain assumptions about technology, markets, geopolitics, and policy effectiveness.

Like a lot of advocacy-oriented modeling, Jenkins’ models have been prone to overemphasize the impact of the policies they are aiming to shape.

While it is certainly plausible that U.S. emissions could be somewhat higher over the next decade under Trump than they would have been under a hypothetical Harris administration, the inverse is just as easily possible. The AI and data center boom would almost certainly have driven the deployment of significant new fossil generation under a Harris administration, just as they are under the Trump administration. Trump’s military adventure in Iran, meanwhile, is driving up energy prices to a degree that would have been unlikely under Harris, creating better market conditions for wind, solar, nuclear, and other non-fossil energy sources.

Even the explicit energy policy comparison is not so clearcut. Over the long term, the Trump administration’s conspicuously efficacious nuclear innovation agenda, and perhaps a bipartisan deal on permitting reform that eluded the Biden administration, may prove every bit as important, if not more so, than the Biden-era policies that the Trump administration and Republican Congress have revoked.

Jenkins at least grounds his analyses in a realistic understanding of energy technologies and their costs. Elsewhere, Lighthiser relies upon far more dubious energy researchers and analysis. In his own declaration submitted by the plaintiffs, Stanford’s Mark Jacobson writes that “the United States no longer needs fossil fuels for its energy purposes and has not for some time.” Jacobson’s discredited claims, along with a heavy reliance on the reductive and misleading levelized cost of electricity (LCOE) metric in Joseph Stiglitz’s and Geoffrey Heal’s respective briefs, are called upon to support the notion that the U.S. energy system could be immediately and easily transitioned to non-fossil technologies. This is far outside mainstream consensus in energy systems and technology analysis, and should be understood as such by the courts.

Forecasts, of course, are hard, especially about the future. As we and others have consistently noted over the last decade, there is little evidence that climate policy has had much impact on decarbonization rates over the long term. Emissions have often fallen faster under Republican administrations than Democratic ones, including during Trump’s first term. That’s because long-term decarbonization trends have historically been driven by macroeconomic forces and technological change, not climate policy. Both are influenced in various ways by policy. But mostly not the sorts of policy that the climate movement, Lighthiser, and Jenkins’ models seek to center in the climate discourse, policy debates, and litigation.

Misrepresenting Climate Science In Service of Vexatious Litigation

Even accepting Jenkins’ estimates, it is hard to establish that Trump Administration policies will have much impact on global warming. Jenkins estimates that those policies will increase U.S. emissions by about 505 million metric tons of CO2 equivalent per year by 2035. That is roughly 10% of current U.S. emissions, less than 1% of current global emissions, and about 0.02% of total historic global emissions—the latter being the emissions factor that actually determines the amount of anthropogenic warming that the world experiences at any given point in time.

Lighthiser insists that “every ton of CO2 emitted contributes to global warming and climate change and increases the exposure of Plaintiffs to more harms now and additional harms in the future.” But the additional emissions that Jenkins estimates translate to an increase of between 0.0001°C and 0.0003°C in global temperatures. Even if that increase in annual U.S. emissions were to persist for a century, it would only translate to between 0.01 and 0.03 degrees of additional warming. This is the actual amount of additional warming, never explicitly stated, that the plaintiffs attribute to Trump Administration policy and claim is “unleashing dangers upon Plaintiffs” and is “a constitutional injury to Plaintiffs’ Fifth Amendment rights to life and liberty, their pursuit of happiness.”

Lighthiser alleges that a raft of harms identified by the plaintiffs—everything from direct injuries caused by natural disasters to asthma caused by wildfire smoke to a lack of skiing opportunities caused by melting snow—are directly attributable to executive branch policies. But even harms that can in some part be attributed to climate change, such as public health impacts caused by excessive heat, cannot be credibly traced to any one policy, corporation, industry, government, or nation. As we write in the brief, “Appellants’ causation theory fails to account for the inherently multifactorial nature of climate risk and collapses complex causal chains into untenable simplifications.”

In the clearest cases, such as heat waves and extreme precipitation events, anthropogenic warming can be confidently said to have modestly intensified climate hazards that would have been extreme anyway. Natural variability remains the primary driver of all extreme climatic activity. For many extreme climatic phenomena, there is no clear anthropogenic warming signal at all.

Yet the youth plaintiffs in Lighthiser cite extreme heat, flooding, drought, wildfire-induced smoke, and precipitation as the source of their injuries, such as the claim that plaintiffs will “face increasing extreme weather events, including hurricanes and tropical cyclones due to increased fossil fuel pollution.” Plaintiffs frequently link their injuries to specific extreme weather events and natural disasters, such as Hurricane Helene and the 2023 wildfires in Maui.

In Lighthiser, as in Juliana and dozens of other climate lawsuits at the federal, state, and local level, the plaintiffs ask the courts to find that tortious harm results from policies or actions responsible for a small fraction of annual global emissions, which in turn is responsible for a small share of total anthropogenic warming, which in turn can account for an at most marginal intensification of some extreme climatic phenomena, which in turn are not the main driver of social costs associated with climatic phenomena.

An Anti-Democratic End Run

While Lighthiser can be easily dismissed as an absurdist parody of an actionable legal theory, it is also a microcosm of sorts of the fundamental strategy pursued by the climate movement. The climate movement is, at bottom, minoritarian. Having failed to mobilize either sufficient public demand or a crosscutting political coalition for sweeping climate action, the movement has sought to leverage its factional position within the Democratic Party, executive action, and the courts to achieve its desired ends instead.

Public concern about climate change is real and durable. All else equal, and as long as it doesn’t cost them any money, significant majorities of the public support climate action. But therein lies the rub. There is little public appetite to pay more for energy or other goods in order to cut emissions. Making polluters pay for the social cost of climate change sounds great until people realize that they are the polluters. The continual insistence that public resistance to the movement’s agenda is due to fossil fuel disinformation, the renewable energy boosterism, and claims that rapid reductions in emissions will save money are all forms of self-justifying cope downstream from this reality.

Unsurprisingly, then, the climate movement has attempted to end-run democratic governance, and instead pursue its unpopular and implausible agenda through executive action and the courts. Lest anyone doubt that this effort extends far beyond the Trump administration’s own assaults upon climate science, common sense, and practical energy policy, it is important to remember that OCT brought a similar suit against the Biden administration, seeking to invalidate all American energy policy, on the grounds that such policies have failed to keep atmospheric carbon emissions under 350 ppm. OCT has brought similar suits in all 50 states, and other climate advocates and attorneys general have brought over 1000 climate liability suits against corporate emitters and state and local governments.

That this effort is almost certain to fail is really beside the point. A movement underwritten by well-heeled environmental philanthropies, and no less dependent upon billionaires than its opposition, endeavors to substitute rule by ideologically motivated experts for deliberative, democratic policy-making. In so doing, OCT and its climate movement clients reveal themselves, perverting both science and democracy in pursuit of the movement’s millenarian agenda. The effort does not defend the Constitution but is, rather, antithetical to America’s founding principles.

The Breakthrough Institute’s amicus brief in Lighthiser v. Trump, authored in collaboration with and filed by Charlene Koski of the law firm Van Ness Feldman, is available below.