U.S. Climate Change Litigation Update: The Supreme Court Greenlights State Court Adjudication Of Climate Claims

• Jurisdiction: United States,Federal
• Published date: 30 May 2023
• Subject Matter: Environment, Consumer Protection, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Climate Change, Dodd-Frank, Consumer Protection Act
• Law Firm: Jones Day
• Author: Ms Daniella Einik and Matthew S. Krsacok (Matt)
• topic: Environmental Law,Energy & Natural Resources,Federal,Ongoing or Prospective Litigation,Civil Procedure,Public Sector Law

State/Federal Forum Issues

Since 2017, a laundry list of state and local governments have sued energy companies in state court seeking damages and other relief to remedy the effects of global climate change. These climate change lawsuits allege that energy companies have caused global climate change by emitting greenhouse gasses through the extraction and production of fossil fuels, and further by failing to disclose the harmful effects of these activities.

Years into climate change litigation, the merits of these claims have largely not yet been litigated. Instead, the battlelines have been drawn around forum questions'namely, in what court do climate claims belong: state or federal?

The U.S. Supreme Court has now declined to hear a group of petitions asking the Court to reverse the remand of climate change lawsuits to state court. The immediate effect of these certiorari denials is that plaintiffs' climate claims will now proceed on the merits in their respective state courts.

From the beginning, plaintiffs, perceiving strategic benefits to litigating in state court, have exclusively pleaded nominally state-law claims sounding in tort, fraud, public nuisance, and consumer protection, and argued that state courts offer the proper forum. The energy company defendants, on the other hand, have sought to remove these claims to federal courts by chiefly arguing that, while climate claims may appear as state-law claims, they are inherently federal in nature and implicate important federal interests, including the global climate, international relations, and strategic oil reserves. Federal law'including the Supreme Court's decision in American Electric Power v. Connecticut, 564 U.S. 410 (2011)on Clean Air Act displacement of certain state-law claims'could provide energy companies' with grounds to dismiss these complaints.

So far, six federal circuit courts to have considered the question have held that state-law climate claims cannot be removed to federal court. Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703 (8th Cir. 2023); Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022); City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Mayor & City Council of Baltimore v. BP p.l.c., 31 F.4th 178 (4th Cir. 2022); City & County of Honolulu v. Sunoco LP, 39 F.4th 1101 (9th Cir. 2022); County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022); City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020); Bd. of Cnty....