Minnesota’s climate lawsuit is a dangerous gambit

When it comes to solving issues facing the people of Minnesota, our state legislature has a long history of working across the aisle to deliver. As a former state senator, representative and Minnesota’s Senate Majority Leader, I know the legislative process can be chaotic, but this give-and-take can be an invaluable tool to ensure us lawmakers get the law right.

During my tenure, we took major strides on protecting and preserving Minnesota’s natural resources and environment. From providing millions in funding to protect and enhance Minnesota’s air, water, fish and wildlife, to supporting research of new renewable energy sources, we prioritized practical, real-world and collaborative approaches to accomplish this shared goal.

That’s why I find the Minnesota Attorney General’s confrontational approach to environmental policy so problematic. Since 2020, the Attorney General has carried out a lawsuit against several energy companies in an attempt to hold them financially liable for alleged damages from climate change. Making climate policy, though is a legislative, not legal endeavor. There are many ways that we can address the concerns of the attorney general that make sense for all Minnesotans. But many of them, including this litigation, can have significant downsides.

Of most concern, this litigation could end up raising the cost of energy we all pay. Lawsuits also can hinder innovation efforts, such as carbon capture technology and the development of new energy sources. These downsides of the attorney general’s lawsuit cannot be considered by the courts. It is only in the legislature where these concerns can be addressed, where good policy can be developed, and where we can work across party lines to deliver solutions to the governor’s desk.

Adding to this concern is the impact that out-of-state special interests are having on this litigation – again in undemocratic fashion.

The Minnesota lawsuit is just one of more than two dozen carbon copy cases that national law firms and advocacy groups have orchestrated across the country. Furthermore, two of the special assistant attorneys general in our state attorney general office were actually recruited and are being paid by outside interest groups to bring this litigation. Several other states have banned this practice because it rings obvious ethical alarms and Sen. Mark Koran last year questioned the attorney general’s policy director on this very issue.

In recent weeks, the judiciary announced a major, but misguided ruling in favor of the attorney general to allow his case to proceed in state court rather than in federal jurisdiction. The Eighth Circuit Court of Appeals ruled that allowing Minnesota to recover damages for injuries caused by climate change may impact the ability to produce and sell energy, thereby “affecting any federal interest that relies in part on the availability and affordability of energy.” It’s a decision that could allow the state to “set a national energy policy” – an observation made the three-judge panel.

Frankly, even the debate over where these cases are heard has exposed the major problems with this litigation. Last year, at the Federal Court of Appeals for the Eighth Circuit’s hearing on Minnesota’s case, Judge Jonathan Kobes got to the heart of the matter. He expressed concern with creating state court liability over climate change, noting the lawsuit “necessarily crosses that boundary because it relies on interstate and, in fact, global emissions.”

Paul Gazelka

Emissions are global by nature. But while emissions in China, India and other countries dwarf those in Minnesota and other U.S. states, this litigation only targets energy producers in America. That doesn’t seem right.

This fact under underscores the political nature of this litigation. It is nothing more than a targeted effort to blame certain people and industries for alleged climate change damages. If the courts are the ones to pick the winners and losers in the climate policy debate, we will all lose. As 15 states have explained in their filings in response to these lawsuits, such litigation ties the hands of Congress and state legislatures from making the real progress we need.

Minnesota’s climate policy should not be outsourced to out-of-state special interests or the courts. It’s past time that we return climate policy back to those most accountable to the people –Minnesota’s elected lawmakers.

Paul Gazelka is a former state representative, senator and Majority Leader of the Minnesota Senate (2017-21) from St. Paul.