U.S. Climate Change Litigation Update: The Supreme Court Greenlights State Court Adjudication of Climate Claims
State/Federal Forum Issues
Since 2017, a laundry list of state and local governments have sued energy companies in state court seeking damages and other relief to remedy the effects of global climate change. These climate change lawsuits allege that energy companies have caused global climate change by emitting greenhouse gasses through the extraction and production of fossil fuels, and further by failing to disclose the harmful effects of these activities.
Years into climate change litigation, the merits of these claims have largely not yet been litigated. Instead, the battlelines have been drawn around forum questions—namely, in what court do climate claims belong: state or federal?
The U.S. Supreme Court has now declined to hear a group of petitions asking the Court to reverse the remand of climate change lawsuits to state court. The immediate effect of these certiorari denials is that plaintiffs' climate claims will now proceed on the merits in their respective state courts.
From the beginning, plaintiffs, perceiving strategic benefits to litigating in state court, have exclusively pleaded nominally state-law claims sounding in tort, fraud, public nuisance, and consumer protection, and argued that state courts offer the proper forum. The energy company defendants, on the other hand, have sought to remove these claims to federal courts by chiefly arguing that, while climate claims may appear as state-law claims, they are inherently federal in nature and implicate important federal interests, including the global climate, international relations, and strategic oil reserves. Federal law—including the Supreme Court's decision in American Electric Power v. Connecticut, 564 U.S. 410 (2011)on Clean Air Act displacement of certain state-law claims—could provide energy companies' with grounds to dismiss these complaints.
So far, six federal circuit courts to have considered the question have held that state-law climate claims cannot be removed to federal court. Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703 (8th Cir. 2023); Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022); City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Mayor & City Council of Baltimore v. BP p.l.c., 31 F.4th 178 (4th Cir. 2022); City & County of Honolulu v. Sunoco LP, 39 F.4th 1101 (9th Cir. 2022); County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022); City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020); Bd. of Cnty. Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022). But cf. City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). The defendants in these cases have sought intervention from the Supreme Court.
The Eighth Circuit ruled most recently, holding that Minnesota's state-law climate claims did not implicate any federal question that would allow removal to federal court. Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703 (8th Cir. 2023). Notably, however, Judge David Stras authored a concurring opinion calling on the Supreme Court to reexamine its removal jurisprudence, remarking that Minnesota's lawsuit "seeks a global remedy for a global issue" and "[t]here is no reason for the removal rules to operate in such a confounding way" to deny federal jurisdiction. Id. at 717, 720 (Stras, J., concurring).
Nevertheless, following the Eighth Circuit's decision, the Supreme Court denied certiorari on five pending climate petitions on April 24, 2023. Without any written remarks, it is difficult to discern why the Justices stayed out of the fray. Only Justice Kavanaugh indicated (without further comment) that he would have granted the petitions. Justice Alito took no part in the decision (without a stated reason, though likely as a recusal measure due to disclosed stock ownership in certain energy companies involved in climate change litigation). On May 15, 2023, the Supreme Court denied the two last certiorari petitions—from the Third Circuit's twin remand affirmances in City of Hoboken and Delaware—that remained pending before the Court.
Most notable among the denied petitions is that of Suncor Energy from the Tenth Circuit. In October 2022,the Supreme Court called for the views of the Office of the Solicitor General on the question, an important signal of the Court's interest in the question.
The Solicitor General's Office filed its brief on March 16, 2023, urging the Supreme Court to deny certiorari and, departing from the position taken by the Trump administration, arguing that state-law climate claims are not removable to federal court. Solicitor General Elizabeth Prelogar took the position that "[a]fter the change in administration" and developments in the circuit courts "the United States has reexamined its position and has concluded that state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law." The petitioners filed a supplemental brief blasting the Solicitor General's Office for its about-face and for betraying the "federal government's institutional interest in taking a broad view of federal jurisdiction." The brief claimed that the Solicitor General's "change in position is being driven by the fact that the questions are arising in the context of climate-change lawsuits—and by a desire to signal virtue to political bedfellows who are behind these lawsuits."
This exchange reflects the high stakes of thesepetitions. Plaintiffs' climate change lawsuits seek to extract billions in damages and abatement funds from energy companies. Unless the Court changes course in a future petition, the Court's recent certiorari denials now pave the way for climate claims to proceed in state courts—and possibly before state juries—around the country.
Other Recent Lawsuits
In addition, two new climate lawsuits were filed over the past several months prior to the recent Supreme Court developments.
In October 2022, the Attorney General of New Jersey, joined by several New Jersey state agencies, filed claims in New Jersey state court against energy companies, alleging state consumer protection claims and other tort claims premised on a "successful climate deception" campaign. Platkin v. Exxon Mobil Corp. et al., MER-L-001797-22 (N.J. Super. Ct.). The energy companies sought to stay the case while the Supreme Court considered certiorari on the broader climate questions. Given the recent certiorari denials, this case will likely soon proceed.
And in November 2022, a group of 16 Puerto Rican municipalities also filed a lawsuit against energy companies. Municipalities of Puerto Rico v. Exxon Mobil Corp. et al., 3:22-cv-01550 (D.P.R.). The Puerto Rico lawsuit is unique for two reasons: First, the lawsuit originated in federal district court as opposed to state court. Second, the Puerto Rico lawsuit brings federal Racketeer Influenced and Corrupt Organizations Act claims and federal antitrust claims in addition to the typical array of state tort, public nuisance, and consumer protection claims that have characterized previous climate litigation. Right now, briefing is underway on the energy companies' joint motion to dismiss.
It remains to be seen whether the Puerto Rico case—and its mixture of federal and state claims—is an outlier or represents a new model for climate litigation that will continue to proliferate.
Read the full Climate Report here.
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