Full Steam Ahead For Climate Torts After Justices Take A Pass
By: Enrique Serna
Share This Post
Full Steam Ahead For Climate Torts After Justices Take A Pass
Written By: Keith Goldberg; Additional reporting by Madeline Lyskawa; Editing by Kelly Duncan and Jay Jackson Jr.
Re-posted from Law360 (April 24, 2023, 8:03 PM EDT) — The U.S. Supreme Court on Monday handed state and local governments a crucial victory in their quest to put fossil fuel companies on the hook for climate change-related infrastructure damages and will force the companies to fight climate torts on multiple fronts.
The justices denied petitions from Chevron Corp., ExxonMobil Corp. and other energy companies to review circuit court rulings affirming the remand of dozens of suits accusing them of promoting the production and use of fossil fuels while concealing their environmental risks.
That allows those cases to proceed in state and local courts and ends yearslong efforts by energy companies to keep the cases in federal court, where they may have ultimately been dismissed under precedent including the Supreme Court’s 2011 ruling in American Electric Power Co. Inc. v. Connecticut.
“This is not going to get a result anytime immediately,” said Tracy Hester, who teaches environmental law at the University of Houston Law Center. “But this is a crucial threshold.”
Case watchers say it’s always difficult to read into a Supreme Court cert decision. Even Justice Brett Kavanaugh, who said he would have granted the petitions, didn’t provide any written explanation.
But experts say Monday’s denials suggest that there weren’t four justices comfortable inserting themselves into state climate tort litigation, especially since six circuit courts concluded that the cases didn’t implicate federal law even after the Supreme Court ordered them to expand their reviews of remand orders in 2021’s BP PLC et al. v. Mayor and City Council of Baltimore .
The U.S. solicitor general also urged the justices not to take the case after they asked the U.S. Department of Justice to weigh in.
“It indicates that they want to stay out of state tort litigation, and also that they don’t want to greatly expand the grounds for removal to federal court,” said Robert Percival, who heads the environmental law program at the University of Maryland’s Francis King Carey School of Law.
Hester also noted that when the Supreme Court limited the scope of the U.S. Environmental Protection Agency‘s authority under the Clean Air Act to regulate greenhouse gas emissions from the power sector in last year’s West Virginia v. EPA, it didn’t say anything about the CAA’s ability to completely clear the field of potential tort liability, nor the EPA’s regulatory authority impacting other areas of liability.
“This court seems to be showing some sense of caution before sweeping the board clear of climate tort lawsuits,” Hester said.
In urging the Supreme Court to review the remand orders, the energy companies argued that claims related to greenhouse gas emissions and climate change are a matter of federal common law and state courts would essentially create a patchwork of policies to address a national and global problem.
However, Pace Law School environmental law professor Katrina Fischer Kuh, currently a visiting professor at the University of Hawaii’s William S. Richardson School of Law, said not letting the suits proceed in state and local court could have created a legal mess of its own.
While many of the suits allege state common law violations such as nuisance and trespass that may be tied to the GHG emissions of fossil fuels, Kuh said many others have also alleged violations of state consumer fraud laws that are linked more closely to the companies’ alleged deceptions.
“It was hard to see a clean way to extinguish the climate suits, many of which are not focused on anything that arises under the Clean Air Act or interstate emissions,” Kuh said.
Energy companies said Monday that they will continue to fight the lawsuits. Experts say while companies likely won’t abandon arguments that climate-related claims are a matter of federal law, they’ll now have to make that case in state court.
“That changes the calculus a lot, because that means discovery, and potentially a jury trial,” said Karen Sokol, a climate and environmental law professor at Loyola University New Orleans Collegeof Law. “The discovery stage is where, for the first time, things are going to get interesting, because the parties are going to be seeking information related to the merits [of the case], and the merits are allegations of a disinformation campaign.”
Given the subpoena power of many state courts, that could result in even more information about companies’ alleged deceptions being made public, Sokol said.
The legal tactics are going to get more complicated as well, experts say. While the claims in each case are similar, they won’t be similarly adjudicated.
Court procedures governing things like standing, discovery and admissibility of expert evidence can vary from state to state. Even before getting to the merits of a particular case, energy companies will have to take different approaches to things like scheduling orders and summary judgment motions, experts say.
“It’s going to be a very interesting game of hyper-dimensional chess for the defendants,” the University of Houston’s Hester said.
Experts say energy companies will likely make further attempts to get the Supreme Court to step into the climate tort fight. But Monday’s denials make that a more distant and daunting prospect given that companies will have to exhaust their efforts in state trial and appeals courts before making a case to the justices.
“You’re going to have to have the Supreme Court navigate around adequate, independent state court grounds for decisions,” Hester said. “Effectively, state law becomes a much more serious line of defense that [companies are] going to have to surmount before they can get the Supreme Court to jump in a broad, sweeping way.”
To read more go to: Click Here and get your Law 360 subscription today to view more great legal content.
If you or a loved one have been involved in a personal or product injury, or harmed by a defective products; contact Serna & Associates PLLC Today. Click Here to learn more or call: 1-877-822-1212 attorneys standing by.