A panel of justices on the 8th Circuit Court of Appeals probed attorneys about the federal nature of Minnesota’s climate lawsuit during oral arguments last week over whether the case should be heard in federal or state court.
It was an embarrassing performance for the Minnesota attorney general’s office, with the headline from Bloomberg declaring “Minnesota’s Claims In Climate Case Appeal Draw Skepticism,” while E&E News observed: “Judges Grill Minn. In Climate Liability Fight.”
During arguments, the panel – consisting of Judges Leonard Steven Grasz, David R. Stras, and Jonathan A. Kobes – appeared unconvinced by the state jurisdiction arguments presented by Sher Edling’s Vic Sher, who argued on behalf of the attorney general’s office. Sher Edling represents roughly two dozen states and municipalities in their climate lawsuits against energy companies.
The judicial grilling comes as the Minnesota attorney general’s office is under scrutiny from the state legislature for its acceptance of private funding for the attorneys responsible for filing this case. Legal Newsline reported this week that the office is seeking to replace one of its Special Assistant Attorneys General with a new attorney sponsored by the Bloomberg-funded NYU School of Law State Energy & Environmental Impact Center.
The previous Bloomberg-funded attorney filed Minnesota’s climate lawsuit after activist groups funded by the Rockefeller Family Fund enlisted a University of Minnesota law professor to draft a memo laying out the legal arguments to be included in the complaint. The Rockefeller Family Fund is one of the central organizers and supporters of the entire climate litigation campaign.
In other words, wealthy anti-energy donors have wielded tremendous influence over Minnesota’s top law enforcement officer, and their fingerprints are all over this litigation.
The companies are appealing a federal court decision to remand the case to state court. Attorneys arguing on behalf of the companies stated that Minnesota is attempting to regulate global emissions:
“I think what’s so problematic about this is that if these sorts of cases are allowed to proceed in state court, what states are going to be doing is using state law to regulate activity not just nationwide, but internationally.”
Ellison’s case is a civil consumer protection lawsuit, and the judges probed how much of the state’s claims rely on the companies’ global greenhouse gas emissions, which raise inherently federal concerns, rather than the alleged fraud and misrepresentations the state claims took place in Minnesota.
On the topic of federal interest, Judge Kobes questioned whether the attorney general’s lawsuit “necessarily crosses that boundary because it relies on interstate and, in fact, global emissions.”
Judge Stras, meanwhile, said flat out that he was unsure that Minnesota’s complaint is “carefully crafted.” He homed in on the degree to which the state’s claims discuss global emissions rather than misrepresentations that allegedly occurred in Minnesota:
“[The complaint] mentions the words greenhouse gas, air pollution emissions, and climate change more than three hundred times, while at the same time – from what I can tell – there’s only a single alleged misstatement from David Koch supporting the claim. So, I don’t quite know how you can say that this is not about interstate pollution.” (Emphasis added)
Separately, Stras identified the various elements of federal law inherent in the State’s case:
“Here you have the federal common law in the background. At the very least it’s sitting there in the background, I think even the state would admit that, but you can certainly disagree with me. … But then you add the Clean Air Act. […] It seems like the entire case is about federal law, even if there’s this one small component of state misrepresentation, which would then require us to get into all these issues of federal law.” (Emphasis added)
In light of the interstate – and global – climate impacts that underpin Minnesota’s claims, and the scope of damages sought, Shanmugam characterized the state’s misrepresentation claims as a “fig leaf.” He pointed out the damages being sought by the state are disproportional to damages sought in a traditional consumer protection case:
“The damages and the relief that are being sought in this case are far broader than the relief that would be sought in a paradigmatic consumer protection case. And I would point in particular to the fact that the state is seeking nearly unlimited restitution and injunctive relief.”
Should the 8th Circuit rule in favor of the companies, it will further widen an appellate court split, which would increase the likelihood that the U.S. Supreme Court would take an active interest in the jurisdictional questions arising from climate lawsuits taking place across the country.
