The battle between Big Oil and the states and municipalities suing them for the purported climate-related damage caused by carbon emissions is focused, for now, on the potentially pivotal question of whether the lawsuits should be heard in state or federal court. Next month, the United States Supreme Court will hear one of these growing number of cases. The defendant oil companies in the case, ExxonMobil, BP, Chevron, and the like, are seeking the right to appeal a federal court’s decision to remand the case back to the state court where Baltimore originally filed its suit.
Plaintiff’s attorneys generally prefer state court, convinced it gives them a better chance of hitting the jackpot. The trial lawyers who typically litigate these climate cases on behalf of state and local governments are no exception. They believe that savvier federal judges will be more likely to dismiss their tenuous cases and that the composition of federal juries and the consistency of federal courts also make huge verdicts less likely.
There are 20 or so climate lawsuits currently underway in jurisdictions ranging from Hawaii to Delaware. Activists are suing the producers of fossil fuels for billions of dollars, and now, the parties are largely battling over whether the suit will be heard in federal or state court. The plaintiffs have won these procedural battles in some federal appellate courts, but they have yet to score a win on the substantive issue of whether their claims are legally viable.
The few courts that have reached that question have ruled for the defendants. Most notably, one of the first of the climate lawsuits ended in a humiliating verdict for the New York attorney general after going to trial in a state court last year. The presiding judge, a Democratic appointee, found New York’s claims to be “hyperbolic” and “without merit.”
Climate plaintiffs face two fundamental obstacles. First, as a group of 13 state attorneys general pointed out, climate suits are a misguided attempt to use “law enforcement authority to resolve a public policy debate” about the use of fossil fuels. Second, it’s not unlawful to produce or sell fossil fuels, so the plaintiffs have to be creative in manufacturing legal claims.
Moreover, the claims have to arise under state law if the suit is to remain in state court. Typically, the plaintiffs claim that the oil companies are guilty of common-law nuisances or deceptions about climate change risks in violation of state consumer or securities fraud laws.
The defendant energy companies respond by transferring the suits from state to federal court. This is permitted when a suit contains state claims that raise substantial federal issues — in this case, issues surrounding national energy policy. The plaintiffs then challenge removal when they get to federal court.
A lawsuit filed in Superior Court of the District of Columbia this June is a typical example. The suit accuses the oil companies of violating the city’s Consumer Protection Procedures Act by concealing the climate risks posed by fossil fuels. After the defendants moved the suit to the U.S. District Court for the District of Columbia, the city filed a motion to remand the case back to the Superior Court.
In its motion, the city denied seeking the reduction of fossil-fuel use and argued that its claims do not raise substantial questions of federal law. The companies counter that the claims, though “nominally asserted under a local consumer-protection statute,” are intended to “discourage federally promoted fossil-fuel production, reduce federally regulated interstate and international carbon emissions, and undermine federal energy and environmental policy.”
The “balance between the use of fossil fuels and reduction of greenhouse gas emissions,” which the Washington, D.C., lawsuit seeks to change, is an interstate and foreign policy issue that is already regulated by the federal government and “can be addressed only on a national level by the federal courts,” the defendants said. The city “cannot avoid federal court simply because it has omitted the language of federal law from its complaint.” In fact, “Congress provided for removal to prevent precisely this type of interference with longstanding federal policy.”
The same can be said of all the climate suits. Nonetheless, the plaintiffs have succeeded in convincing some courts to ignore the federal elephant in the room. They may even hit the jackpot in one of the state courts. But for the most part, these lawsuits will continue to fail when courts reach the substance of the claims.
That’s because there’s an elemental mismatch between the plaintiffs’ real gripe, which is mankind’s continued reliance on fossil fuels, and the states’ claims. Disingenuous claims may get into state court, but they will almost always fail on the merits.
That is good because this climate litigation will do nothing to reduce carbon emissions, even as it diverts attention and resources away from effectively fighting climate change. In short, climate lawsuits impede the changes in national and international energy policy that they seek to promote.
Curt Levey is a constitutional law attorney and the president of the Committee for Justice, a nonprofit organization dedicated to preserving the rule of law.
