OPINION:
It’s no secret that Vice President Kamala Harris has shifted her tone on several key issues, most notably dialing back the antipathy toward fossil fuels she has held for years.
On the debate stage, she touted the issuance of fracking leases through the Inflation Reduction Act, a 180-degree pivot from her vow to ban hydraulic fracturing in 2019. Similarly, Ms. Harris is campaigning on her track record of “taking on Big Oil” while claiming credit for record domestic oil production.
Naturally, the question on many voters’ minds is, where does Ms. Harris really stand on energy? The answer may be found unexpectedly, in an upcoming legal brief soon to be filed with the Supreme Court.
In June, the Supreme Court asked the Department of Justice to weigh in on a petition asking the court to review the legal viability of Honolulu’s climate change lawsuit against energy companies. The administration’s brief, which the solicitor general is expected to file this month, will likely hit before the election. Common sense dictates that the brief will align with Ms. Harris’ position as the new standard-bearer of the administration and the Democratic Party.
Ms. Harris’ support for climate lawsuits — a billionaire-backed attempt to bankrupt energy companies via state courts — was once a central platform for the former prosecutor. In a presidential debate in 2019, Ms. Harris asserted that as California attorney general, she “sued Exxon Mobil.” Activists cheered her past enthusiasm for such tactics to indicate that she is willing to go further than President Biden concerning aggressive policies against the fossil fuel industry.
Today, the prosecutorial line Ms. Harris took toward energy companies in 2019 is relatively absent from her campaign and from the Democratic Party platform, much to the chagrin of activists. But if the vice president does ultimately support climate lawsuits against U.S. energy companies, her changing narrative toward fracking and the domestic energy industry falls on its face.
That’s because this litigation has been rightly characterized as “simply a way to go through the back door” to achieve what is impossible through legislation or executive order: the eradication of fossil fuels. Supporters of climate lawsuits acknowledge they are intended to prompt a “systems-level change” that would make energy too expensive for consumers to stomach, thereby eliminating legitimate demand for oil and natural gas by court order.
Recognizing this as a stretch of liability law, courts have rejected lawsuits brought by New York state, New York City and most recently Baltimore, finding that the judiciary cannot be used to address a global phenomenon such as climate change. Other courts have allowed cases in their jurisdictions to proceed, prompting oil company defendants to seek Supreme Court review of Honolulu v. Sunoco in light of conflicting decisions across the country.
The upcoming DOJ brief — presumably reflecting Ms. Harris’ actual position on the issue — will be key to the Supreme Court’s decision on whether to take up the defendants’ appeal in Honolulu this term.
A legal filing can be telling in a chaotic and fast-moving presidential campaign. Take the widely unpopular Biden-Harris pause on liquefied natural gas export permitting, which has been noticeably absent from Ms. Harris’ campaign message ever since a court struck down the pause over the summer.
The White House’s recent appeal of that ruling says volumes more than the single permit issued since the pause was announced: Campaign rhetoric aside, the administration stands by the pause and intends to defend the harmful policy in court.
Unlike campaign promises and omissions, legal filings are binding. Overtures to swing voters who support fracking mean nothing if climate lawsuits are allowed to prevail. The record oil production statistics that Ms. Harris now advertises with pride will quickly become a thing of the past if fossil fuel production becomes liability-inducing.
If the Biden-Harris administration endorses climate change lawsuits with the full weight of the Department of Justice, voters will have a clear picture of where Ms. Harris truly stands on oil and natural gas. It won’t be on the side of everyday Americans.
• Steven Winberg is the former Department of Energy acting undersecretary for energy and assistant secretary of fossil energy.
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