Climate Lawsuits in State Courts Are an Abuse of US Legal System

How to address the threat of climate change has been publicly debated for decades. Some local officials are attempting to hash out the debate in state courts, drawing the attention of the US Supreme Court.

In October, the justices asked the US Solicitor General to consider whether state or federal courts are the appropriate venue to hear climate change lawsuits filed against energy producers. The answer is expected to come soon.

Case Study

The case in question alleges that the city of Boulder, Colo., as well as Boulder and San Miguel counties, will suffer from millions of dollars in damages due to climate change. The complaint seeks to make Suncor Energy Inc. and ExxonMobil Corp. foot the bill as if they were the sole offenders. The plaintiffs’ supporters say the suit should proceed in state court, where they anticipate a more favorable hearing, while the defendants argue that the case belongs in federal court since it implicates interstate and international claims around global carbon emissions.

The question of venue is no small matter. Proponents of climate lawsuits hope President Joe Biden’s campaign pledge to “strategically support” their efforts will bring such complaints to state courts as opposed to federal courts, where federal judges have consistently dismissed them. This is an important issue riding on the policy that Solicitor General Elizabeth Prelogar will enunciate in her upcoming brief.

Implications

The consequences of Prelogar breaking with tradition to support filing climate lawsuits in state courts could have serious consequences. It could pave the way for state and local politicians to commandeer federal court systems to advance their climate agenda, sidestepping the US government and establishing climate policy through state litigation.

This position also could make countless industries a target for costly lawsuits. This includes cattle farmers for owning cows that emit methane emissions automakers for designing cars that emit carbon, or airlines for using jet fuel.

Former Acting Solicitor General Neal Katyal warned of these dangers in 2011 when the Obama administration opposed a similar climate lawsuit, saying there could be “almost unimaginably broad categories of both potential plaintiffs and potential defendants.”

Allowing state courts to litigate matters of climate change overlooks that emissions have global sources and can’t be confined to a state’s borders. Maryland has some of the more high-profile plaintiffs carrying out these lawsuits, but there’s nothing unique local about their complaints to substantiate why they should proceed in state court.

As noted by the Washington Legal Foundation, “When carbon dioxide enters the atmosphere from a power plant in West Virginia, it is impossible to track every molecule to see if it is resting above Baltimore and increasing temperatures there.”

The foundation also said, “It makes no sense to have one state’s common law govern emissions that emanate from across state or international borders.”

Gaming the System?

Nevertheless, some Maryland officials, like those in other states, suggest they’re trying to game the system by advancing climate change litigation in state court. When Annapolis officials announced its lawsuit in 2021, City Attorney Mike Lyles assuredly stated, “We think the Maryland courts will get us there.”

Traction in federal venues has been unsuccessful for local officials. In 2011, the Supreme Court decided unanimously in American Electric Power v. Connecticut to reject climate-related tort claims asserted by several states and New York City against certain major electric power companies.

Even the green-oriented Obama administration expressed its support for this position in its brief to the high court, arguing, “In the context of climate change, a regulatory solution will be far better suited to addressing the scope of the problem and to fashioning an appropriately tailored set of remedies than a potentially open-ended series of common-law suits in far-flung district courts.”

The US Court of Appeals for the Second Circuit dismissed New York City’s lawsuit against energy producers in 2021, noting, “such a sprawling case is simply beyond the limits of state tort law.” And despite the city’s insistence that the case was about an eroding shoreline, the ruling explained, “Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”

Hopefully, the solicitor general will take a step in the right direction to discourage climate lawsuits in state courts. Such lawsuits only abuse our nation’s courts and distract from the formidable and urgent task of finding practical solutions to climate change.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Theodore “Ted” J. Garrish has spent over five decades in the public and private sector focused on energy policy. He was previously general counsel and assistant secretary for international affairs at the Department of Energy.

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