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EcosystemsSupreme Court Allows Major State, Local Government Climate Change Litigation to Proceed...

Supreme Court Allows Major State, Local Government Climate Change Litigation to Proceed on Merits

Supreme Court Allows Major State, Local Government Climate Change Litigation to Proceed on Merits

Justices Decline to Intervene in Government Lawsuits Looking for Damages from Fossil Fuel Industry

This week the U.S. Supreme Court gave state and native governments an enormous–if preliminary–legal win against the fossil fuel industry.  The justices declined to take up quite a few cases by which government entities have sued oil, gas and coal corporations, in search of compensation for the climate change-related damage the jurisdictions they claim to have suffered, and which they attribute to the greenhouse gas emissions the businesses’ products have released into the atmosphere.

After years of procedural wrangling, these lawsuits now–and eventually–head back to state courts for resolution on their merits.

What has grow to be a national wave of closely-related climate change litigation began in California in 2017, when San Mateo and Marin Counties, together with the City of Imperial Beach, filed suit in state court against lots of the world’s largest fossil fuel corporations.  The lawsuits claim that those jurisdictions and their residents have suffered considerable social and economic harm because of this of climate change-related events comparable to sea level rise and intensive, damaging coastal storms.  The federal government seeks money damages from the defendant corporations, alleging that the combustion of their carbon-based products has produced greenhouse gas emissions which in turn have contributed to the climate change impacts these local governments have suffered.

Notably, the federal government plaintiffs claim that while the defendant corporations for years publicly denied that their fossil fuel products were contributing to climate change, their internal communications reveal that the businesses knew full well that the marketing of their products was causing profound environmental damage.  And plaintiffs’ counsel claim to own the incriminating industry documents that prove the businesses’ deception.

Critically, the California local jurisdictions filed their cases in state courts, counting on longstanding state common law principles comparable to public nuisance and trespass because the legal basis for his or her claims.

This climate change litigation template was quickly embraced and replicated by state and native governments across the USA, who followed suit by filing their very own, similar cases against the fossil fuel industry.  While a number of the claims of climate change-related harm vary amongst the federal government plaintiffs and the precise state common law theories relied upon vary as well, the thrust of this national wave of lawsuits is similar: the businesses’ products have caused the harm these jurisdictions have suffered, and now those corporations must pay to compensate the plaintiffs for those harms.

There are actually greater than two dozen such lawsuits pending in states from Latest England to Hawaii.

The industry defendants’ immediate, coordinated response to this wave of litigation has been to attempt to transfer (or, in legal parlance, “remove”) those cases from state court to federal court.  They’ve done so based on the idea–probably well-founded–that defendants are prone to receive a more sympathetic reception from federal judges than their state court counterparts.

Nonetheless, the legal grounds on which a case filed in state court could be removed to federal court are quite narrow under longstanding federal law.  But that hasn’t stopped the defendants from spending years and tens of millions of dollars attempting to persuade federal judges across the nation that these cases must be litigated in federal court.

Unfortunately for defendants, federal district courts and U.S. Circuit Courts of Appeals have uniformly rejected the industry’s procedural arguments.  No fewer that six different Federal Circuits have ruled that these cases don’t belong in federal court, finding as an alternative that they must be litigated and resolved in state courts.

The industry defendants’ final try to keep the cases in federal court was a blizzard of petitions for certiorari, beseeching the U.S. Supreme Court to take up these cases and overrule the six Federal Courts of Appeals that had ruled against them.  However the justices declined to achieve this in a temporary order.  So after six long years of procedural skirmishing and delays, all of those climate change lawsuits are back in state court–where they belong.

(One interesting sidebar on this litigation saga is that the Trump Administration’s Justice Department had originally urged the Supreme Court to rule that these cases could and must be litigated on their merits in federal court.  However the Biden Administration reversed that position, arguing that the cases properly belong in state courts, and that the justices should subsequently deny review–as they did this week.)

So what happens next?

The state and native government plaintiffs’ procedural victory ensures that these far-flung climate change cases might be heard before and decided by state court judges.  Now the main target of the parties and their lawyers turns to the merits of those lawsuits.

The industry defendants have not less than another legal card to play before these cases have a probability to go to trial.  In 2011, a unanimous Supreme Court held in American Electric Power Co. v. Connecticut that federal common law-based climate change cases are displaced by Congressional passage of the federal Clean Air Act.  Critically, nevertheless, the justices declined within the American Electric Power case to make a decision the related query of whether state common law claims are similarly preempted by the Clean Air Act.  The fossil fuel defendants in the current cases will doubtless argue that the state and native government state common law claims are indeed preempted by the federal statute.

It seems to this observer that state court judges might be reluctant to agree, and can as an alternative let these cases proceed on their factual merits.

To make sure, the federal government plaintiffs face some formidable evidentiary challenges in pursuing these cases–specifically, causation (attributing the harm these governments and their residents claim to have suffered to the precise acts and products of those defendants) and quantification of the cash damages to which the plaintiffs are entitled.

However the plaintiffs’ attorneys who’ve rigorously researched and developed these cases like their possibilities.  They claim to have possession of damning evidence that the fossil fuel industry produced and marketed carbon-based products that they’ve known for a long time would profoundly damage the worldwide environment.

Without query, the state common law-based lawsuits that state and native governments across the country have brought against the fossil fuel industry represent a number of the most consequential climate change litigation currently pending in the USA.  Seeing how these cases play out must be fascinating for lawyers and laypersons alike.


American Electric Power v. Connecticut, Biden Administration, Climate Change, Trump Administration, U.S. Supreme Court


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