Given their past failures at the federal level, climate activists are working overtime to ensure their lawsuits against energy producers, filed by Baltimore and Rhode Island, remain in state court. Earlier this week the defendants petitioned the U.S. Supreme Court to stay these cases and prevent them from proceeding while the companies appeal the decision to send these cases back to state court.
In response to the petition, the National Association of Manufacturers filed the first of what could be several amicus briefs in defense of the energy producers shortly after the petition was filed with the Supreme Court.
Earlier this week, Chief Judge William Smith of the District Court of Rhode Island rejected a request filed by the defendants in the Rhode Island case to block a state court’s ruling that the case should be heard in state court, as opposed to federal court. The case is now on hold while the Supreme Court considers the petition.
Meanwhile, the City of Baltimore is in a similar position this week after the Fourth Circuit Court of Appeals denied the defendants’ request to halt proceedings in Maryland state court. Immediately thereafter, respondents filed the same motion in the United States Supreme Court. The court of origination—Maryland District Court—then granted the energy companies’ initial motion and are permitting it to stand until the plaintiffs issue a response in the Supreme Court. The plaintiffs must do so by October 18, a deadline issued by Chief Justice John Roberts. The case is now in limbo while Baltimore attorneys compile their response.
Climate liability law firms are extremely keen on containing their lawsuits in state courts because of previous failures at the federal bench. In New York, for example, Judge John Keenan struck down a similar climate liability lawsuit, ruling that such issues are global in scope and should be resolved by the other two branches of government:
“In sum, this order accepts the science behind global warming. So do both sides. The dangers raised in the complaints are very real. But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The Court will stay its hand in favor of solutions by the legislative and executive branches. For the reasons stated, defendants’ motion to dismiss is GRANTED.” (emphasis added)
Judge William Alsup’s ruling on a pair of lawsuits brought by San Francisco and Oakland is consistent with Keenan’s decision, noting that a “patchwork” of state decisions would be “unworkable:”
“Plaintiffs’ nuisance claims—which address the national and international geophysical phenomenon of global warming—are necessarily governed by federal common law…
“If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making (and studying) with causes ranging from volcanoes, to wildfires, to deforestation to stimulation of other greenhouse gases—and, most pertinent here, to the combustion of fossil fuels…Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable.” (emphasis added)
Importantly, the U.S. Supreme Court has already settled the question of climate liability litigation. In American Electric Power v. Connecticut, SCOTUS ruled unanimously in 2011 that Congress has sole authority to remedy greenhouse gas emissions and delegated that authority to the EPA by passing the Clean Air Act.
The Fourth Circuit expands on this decision in a separate ruling, opining that solutions to climate change fall solely “within national legislative power” because “informed assessment[s] of competing interests [are] required” for “questions of national or international policy.” For this reason, federal judges tend to agree with existing precedent.
Attorneys for the National Association of Manufacturers (NAM) laid out compelling arguments against climate litigation in the amicus brief they filed after the energy producers filed their Application to the Supreme Court to pause the Baltimore case while they appeal the remand decision.
Relying on precedent, their primary contention is that “proceedings in [the Baltimore] case should be stayed until the federal courts determine the proper path, if any, for this climate tort suit” because “[the Supreme Court] effectively ended the first wave of climate change tort litigation in 2011 when it unanimously ruled in AEP that the Clean Air Act displaced any federal common law claims over GHG emissions.”
They also argue that “the Application should also be granted because it would be a waste of judicial resources for Plaintiffs to start discovery or have a trial in a case when the case—and others like it—are properly before the federal circuits and likely to be dismissed as not viable.”
While a failure to stay, or pause, the cause would waste resources, the NAM notes that the Ninth Circuit Court found in a related climate liability lawsuit that “[i]t is unlikely a stay would result in any significant damage or cause any hardship to any party.” In other words, there is no reason not to stay the case while the companies appeal the jurisdictional rulings.
