As petitions asking the U.S. Supreme Court to review whether climate lawsuits against American energy companies belong in federal or state court continue to stack up, a federal appellate judge has called on the high court to get involved.
The U.S. Court of Appeals for the 8th Circuit issued a long-anticipated ruling on the jurisdictional question yesterday in Minnesota’s climate lawsuit. And although the three-judge panel ultimately found that the case should move forward in state court, one judge “argue[d] the circuits essentially are handcuffed by precedent and call[ed] on the Supreme Court to give them more latitude by siding with the oil company defendants,” as Politico reports.
In a concurring opinion, Judge David Stras explained that although he agreed with the other judges in finding that – under current law – Minnesota’s lawsuit doesn’t belong in federal court, he wanted to “write separately … to explain why it should.”
The plaintiffs in these cases have sought to have the lawsuits heard in state court, believing it to be the more favorable venue. Energy companies, meanwhile, have noted that federal courts should have exclusive jurisdiction over the effects of interstate – and international – greenhouse gas emissions, thus avoiding a patchwork of state rulings.
Judge Stras highlighted what the defendants have argued in court for years: that state and municipal climate lawsuits are an attempt to use state laws as a means of imposing preferred environmental policies beyond state borders:
“The problem, of course, is that the state’s attempt to set national energy policy through its own consumer-protection laws would ‘effectively override . . . the policy choices made by’ the federal government and other states. […] Regulating the production and sale of fossil fuels worldwide, in other words, is ‘simply beyond the limits of state law.’” (Emphasis added)
But despite the obvious federal nature of the lawsuit, Judge Stras noted that the appeals court is bound by precedent that establishes specific circumstances that qualify a case to be removed to federal court – and that climate litigation presents an unusual challenge that does not fit neatly into these circumstances.
For that reason, Judge Stras urged Congress and the Supreme Court to consider how an issue that is so evidently a federal matter would be treated as a matter of state law:
“There is no reason for the removal rules to operate in such a confounding way […] But only Congress or the Supreme Court gets to make that call.” (Emphasis added)
The call for clarity comes just a week after the U.S. Solicitor General offered its opinion on the matter at the direction of the Supreme Court. The high court will decide soon on whether to take up the energy companies’ appeal in a climate lawsuit brought by Colorado municipalities.
Judge Stras concluded that while the energy companies’ arguments currently don’t qualify for removal to federal court, this could change as the case progresses:
“As the case progresses, Minnesota may make it even clearer that the case necessarily ‘turn[s] on substantial questions of federal law.’ And developments along those lines could give rise to federal jurisdiction.”
Minnesota’s Manufactured Climate Lawsuit
As a reminder, Minnesota’s climate suit has been controversial from the outset. When Minnesota Attorney General Keith Ellison first announced the state’s climate case in June 2020, it was not disclosed to the public that Ellison had hired the notorious San Francisco-based plaintiffs’ firm Sher Edling to represent the state. Six months later, the private law firm’s role was revealed through court documents. And it took public records requests to uncover the contract between Sher Edling and Ellison’s office; in January 2021, public records revealed the firm stands to make more than $25 million if Minnesota’s suit is successful.
As if one private attorney contract weren’t enough, AG Ellison’s office has also come under fire for its use of two Bloomberg-funded Special Assistant Attorneys General (SAAGs). The SAAGs played a critical role in drafting Minnesota’s climate lawsuit and Ellison thanked them for their “excellent, excellent work” when announcing the case. The unusual arrangement prompted the Minnesota State Senate to consider legislation that would block the attorney general from hiring attorneys who are paid by private parties, and the issue was a focal point of Ellison’s surprisingly tight reelection bid last fall.
What’s more, Minnesota has long been a hotbed of activity for plaintiff-recruiting activist group Center for Climate Integrity (CCI), who worked with local environmental activist group Fresh Energy to pitch the lawsuit to Ellison in 2018.
Public records later revealed that CCI and its partners helped gin up public support for the lawsuit, and even helped recruit a law professor to author a memo to Keith Ellison that helped provide the legal bases for the state’s suit. Unsurprisingly, CCI filed an amicus brief with the 8th Circuit supporting Minnesota’s argument. Although amicus briefs are limited to third parties who are not “party to an action” in the case, CCI filed anyway without disclosing its role in orchestrating the suit.
Bottom Line: Activist activity in Minnesota has made it clear that the state’s climate lawsuit is part of a coordinated campaign with national and international climate policy goals, and hardly a matter of state law. Judge Stras’s reluctant concurrence in yesterday’s decision showcases the federal nature of these claims and adds urgency to the Supreme Court’s consideration of energy companies’ appeal in Colorado municipalities’ climate lawsuit.
