Posted on January 22, 2021 by Tracy Hester
The brawl over climate tort liability has returned, again, to the U.S. Supreme Court. In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages. Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.
A decade later, the battle has resumed in a new forum: the state courts under state laws. Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery. The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law. So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.
Earlier this week, the U.S. Supreme Court waded back into the struggle. The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction. This anodyne cover, however, shouldn’t obscure the petition’s true objective: to broaden the scope of immediate federal appellate review, and control, of climate tort claims.
The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court. The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue. Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.
This grain of procedural sand holds a universe of important legal and policy implications for climate liability law. Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature. When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.
Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines. For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling. Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue. The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).
In the end, other political and legal developments may leap ahead of the Court’s ruling in this case. While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation. The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits. And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule. If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink. Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims. As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.