The U.S. Supreme Court may announce as soon as this week whether it will take up a key jurisdictional question in the climate litigation campaign, setting up the potential of a huge setback for lawsuit supporters.
At issue is whether the climate lawsuit brought by the City and County of Boulder and the County of San Miguel against two energy companies – and, in effect, all climate lawsuits introduced under public nuisance claims – should be heard in federal or state court. After the Tenth Circuit Court of Appeals affirmed a district court’s order remanding the Colorado municipalities’ lawsuit to state court, the energy companies named in the suit filed a petition asking the Supreme Court to review and overturn the ruling.
As reported by E&E News, this is “a venue dispute with huge consequences.” There are currently more than two dozen cases percolating at different stages in different courts across the country, many of which would be affected by a SCOTUS decision should the court take up the case.
Moreover, Boulder and San Miguel have struggled to gain support within the state. Gov. Jared Polis and Attorney General Phil Weiser – both Democrats – have declined to endorse the case, as has Conservation Colorado, one of the state’s biggest environmental groups, and the Denver Post editorial board has spoken up in opposition.
Weiser hasn’t minced words about the lawsuit:
“This is what happens when you do your homework. You ask a basic question like, let me get this straight, our carbon footprint has been reduced by substituting natural gas for coal. How do you sue Exxon for causing climate change? That is a very hard question. I’ve asked it, I haven’t gotten an answer. … And so, I’m uncomfortable with that litigation because the case for it hasn’t been made.” (emphasis added)
Notably, this is not the first time the Supreme Court has weighed in on this suite of climate cases against energy producers. Two years ago, the high court accepted a petition to review a Fourth Circuit ruling in Baltimore’s case, which resulted in a win for the industry on a technical, procedural issue.
Climate Lawsuits are Failing
While the potential SCOTUS decision has major ramifications, it remains a jurisdictional question, and on the merits of these cases, climate lawsuits are failing.
In 2019, the New York Attorney General took its climate case, once deemed the “trial of the century” to state court where, in a decisive loss for the climate litigation campaign, a State Supreme Court Justice rejected all of the state’s claims and the case was soundly defeated.
Similarly, in April 2021, the U.S. Second Circuit Court of Appeals stated that the courts are not the proper place to regulate emissions and affirmed U.S. District Court Judge John Keenan’s 2018 dismissal of New York City’s case:
“The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’” (emphasis added)
The simple facts are that climate litigation is losing on the merits and the plaintiffs across nearly all of these cases see a state venue as their best shot at success.
Energy companies 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. As Energy In Depth highlighted last year, Catherine Sharkey, a professor at the New York University School of Law, noted:
“We can talk about the fact that we have fifty different states with potentially different rules, yet we have manufacturers manufacturing products on a nationwide level.”
Bottom Line: The U.S. Supreme Court may announce whether it will take up this key federal or state jurisdictional question in the coming days, and a decision on the appropriate venue for the climate lawsuits could come as early as next spring.
Even if the court does not resolve the question this term, it is likely that the high court will eventually weigh in on this matter because of the existing circuit split. An eventual decision, particularly one that lands the cases in federal court, would have huge ramifications for the climate litigation campaign that has only experienced defeat on the merits of the cases.
