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Climate ChangeDo Climate Change Cases Belong in Federal Court? The Biden Administration Weighs...

Do Climate Change Cases Belong in Federal Court? The Biden Administration Weighs In.

Do Climate Change Cases Belong in Federal Court? The Biden Administration Weighs In.

In a really narrowly argued temporary, the Administration calls for returning the cases to state court.

The Biden Administration, on the Supreme Court’s invitation, has now filed a temporary giving its views about current lawsuits against oil corporations. The gist of the temporary is that the cases belong in state court., and that the Court should let that occur reasonably than getting into the litigation. The temporary is true about that, and I’m sure the people suing the oil corporations are glad to have the support. However the temporary could have provided more full-throated support of the lawsuits. That raises an issue: Why did the federal government take such a narrow stance reasonably than addressing the broader issues presented by the lawsuits?

The case before the Supreme Court is one in all various lawsuits brought in state court by state and native governments against fossil fuel producers, primarily oil corporations. The lawsuits are based on quite a lot of state law claims. They often include a claim that producing fossil fuels has created a public nuisance in the shape of climate change. A lot of the lawsuits also include separate claims based on misrepresentations by fossil fuel producers in regards to the risks created by their products.

The oil corporations have tried to maneuver all these cases from state court to federal court.  Normally, moving a case to federal court is feasible only in two situations. The primary situation is when all the defendants are from a distinct state than the plaintiff. That’s not true in these cases. The second situation is when the lawsuit is predicated on federal law. The complaints filed in state court don’t actually mention federal law. That may seem to stop the cases from going to federal courts. However the oil corporations have provide you with an advanced argument for ignoring the state-law basis of the cases.

Here’s how the argument goes. The businesses first argue that the complaints belong in federal court since the state law claims are overridden by the federal law of nuisance. They then argue that the federal common law of nuisance not exists because carbon emissions are governed by the Clean Air Act. This is admittedly a rock/paper/scissors argument: paper (federal common law) covers rock (state law), and scissors (Clean Air Act) cuts paper (federal common law). If that every one seems a bit contrived, well I feel it’s.

The federal government’s temporary doesn’t really contest the claims that the oil corporations make in regards to the federal common law and the Clean Air Act. As a substitute, it argues way more narrowly that those claims, even when true, wouldn’t justify moving the case to federal court.

To get an idea of how focused and technical the federal government’s temporary is, consider the way it describes the query presented by the case: It doesn’t argue that states even have the ability to award damages against the businesses. (The federal government does have the ability to do that, but it surely hasn’t done so.)  As a substitute, the temporary phrases the query way more narrowly: “Whether this suit could also be removed to federal court on the bottom that respondents’ state-law claims must be recharacterized as claims arising under federal common law.”

The thrust of the temporary is that, even when the oil corporations are right that the lawsuits are precluded by federal law, that’s not a basis for moving the cases to federal court.  However, the temporary doesn’t rule out the chance that the identical arguments could later require the state courts to dismiss the case.

The federal government’s temporary makes two arguments.  First, the federal government says, it’s unclear whether federal common law would ever have precluded state law claims, and in any event federal common law doesn’t exist anymore and subsequently can’t preclude anything.  Second, even when the Clean Air Act itself preempts state law claims against producers of fossil fuels, that’s a defense that the plaintiffs would need to raise in state court reasonably than a basis for moving the case to federal court.  Each of those arguments appear to be valid.

The federal government’s temporary may need taken a more aggressive stance. It could have argued that federal common law would never have applied to misrepresentation or fraud claims in the primary place, and that the Clean Air Act doesn’t preempt these state law claims in any respect. Briefly, the federal government would have been on solid ground saying that federal law simply has nothing to say about these lawsuits.

But making the broader arguments would have carried a risk. They’d have strengthened the oil corporations’ claim that the lower courts were divided on the relevant issues. They’d even have invited the Supreme Court to contemplate whether these sorts of lawsuits must be in court in any respect. Given the Court’s strong conservative bent, that might have been a dangerous tack to take. It’s probably higher to attempt to defuse the Court’s ideological impulses by framing the case in very technical terms.

It seems clear that the federal government is true in regards to the technical issues. The large risk is that the Court will resolve to disregard the technicalities and concentrate on the larger issue of whether allowing cases like this is nice policy. If the Court phrases the questions in those terms, it’s not hard to guess how the Court will resolve.

It wouldn’t be the primary time the Supreme Court has played fast and loose with legal rules within the interests of what it considers a much bigger goal. However it would also do nothing to allay fears that the conservative Justices are more dedicated to ideology than to the rule of law.


Biden Administration, Clean Air Act, climate change litigation, climate litigation, federal common law, federal common law of nuisance, pollution, preemption, states, Supreme Court, tort law


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