U.S. Justice Dept. seeks court order to stop Nessel’s climate lawsuit plan

The U.S. Department of Justice has asked a U.S. district court to declare that Michigan can’t use state law to regulate carbon emissions nationwide. It did so as part of a lawsuit it filed April 2025 against the state of Michigan, Gov. Gretchen Whitmer and Attorney General Dana Nessel. In May 2024, Michigan Attorney General Dana Nessel announced plans to sue unnamed oil and gas companies for contributing to climate change.

The case hasn’t been filed, but it triggered a legal counterstrike. The Justice Department sued Michigan in April, citing Michigan Capitol Confidential reporting in its argument that the state’s pending climate lawsuit would violate federal law. On June 20, the department asked the court to deny Michigan’s motion to dismiss the federal lawsuit for lack of ripeness.

Motion With Brief in Support to Dismiss for Lack of Jurisdiction by mcclallen

Nessel asked the judge to dismiss the federal lawsuit because her office has not yet filed any climate-related lawsuits.

The federal government counters that Michigan’s attorney general has taken credible steps to file the lawsuit, including:

• Publicly vowing to sue the fossil-fuel industry over climate impacts,
• Issuing a request for proposals seeking firms to bring such suits,
• Laying out a scope-of-work statement that targets producers in and outside Michigan for the global climate crisis,
• Retaining three out-of-state climate-litigation firms to prepare the case “vigorously,”
• Refusing to disavow her intent to sue energy producers in exchange for a Justice Department offer to end the federal suit.

The Justice Department argues that all this shows a credible threat that the suit “is likely to come to pass.”

Michigan signed contracts with three out-of-state law firms that specialize in climate: Sher Edling LLP, DiCello Levitt LLP, and Hausfeld LLP, CapCon reported.

The U.S. says its lawsuit is ripe now because there’s a credible threat. Any state of Michigan lawsuits that rely on state law would intrude on exclusively federal terrain, the Justice Department said. The federal government also requested a permanent injunction to enjoin such state-law claims.

“Michigan invites this court to make believe that its threatened suit might not raise the sorts of claims that the United States argues are preempted: state-law claims for damages related to global climate change, whether sounding in nuisance, consumer protection, or some other state law. But Michigan offers no reason to expect that theoretical possibility, and there is none.”

DOJ RESPONSE in Opposition to MOTION to Dismiss for Lack of Jurisdiction by mcclallen

The court filing encouraged Nessel’s office to sue energy companies over state-law claims, such as nuisance, consumer protection, trespass, negligence, products liability, public-trust, etc, that “functionally regulate global or out-of-state greenhouse-gas emissions.”

The Justice Department brought five arguments to support its position: Clean Air Act preemption; constitutional limits on extraterritorial regulation; Dormant Interstate Commerce Clause; Foreign Commerce Clause; and the Foreign Affairs Doctrine.

“The lawsuits share a common feature: plaintiffs use state statutes and state common law to bring claims against global energy producers rather than using federal law. By framing their lawsuits under state consumer protection statutes or state common law claims, plaintiffs attempt to sidestep federal preemption arguments.”

Michigan promised money to law firms that are filing similar lawsuits in multiple other states, the Justice Department noted.

“The firm (Sher Edling) has filed the same type of materially identical lawsuit dozens of times, including for Massachusetts, Delaware, Hawaii, Maine, Minnesota, Rhode Island, New Jersey, and more,” said the federal response to Michigan’s motion to dismiss. “Its complaints for the States—all of which are filed against major energy producers (e.g., Exxon Mobil Corporation)—allege materially similar state-law claims.”

The climate lawsuit could target fossil fuel industry defendants, including but not limited to extractors, producers, transporters, refiners, manufacturers, distributors, promoters, marketers and sellers.

Nessel’s office hasn’t responded to a request for comment.

Earlier this year, a judge in South Carolina tossed with prejudice a climate lawsuit city in that state filed against oil companies.

“If these lawsuits were successful, municipalities, companies, and individuals across the country could bring suits for injuries after every weather event,” the judge wrote. “The list of potential plaintiffs is unbounded. Moreover, under Plaintiff’s theory, there is no reason to limit the universe of potential defendants to energy companies alone.”

The Aug. 6 ruling in South Carolina follows unfavorable rulings against state attorneys general by judges in New Jersey and Maryland.

Nessel has waged a war on fossil fuels, Joshua Antonini, an energy and environmental policy researcher at the Mackinac Center for Public Policy, told CapCon in an email.

"The Department of Justice is right to counter AG Nessel's thinly veiled policy-through-litigation masquerading as rights protection. The war on fossil fuels — that is to say, the war on the energy that makes modern life possible and affordable for everyday people — is bad policy, let alone a foolish lawsuit."