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Federal courts of appeals cannot agree whether climate change lawsuits are governed by state or federal law. Some federal courts have also concluded these cases should proceed in state court, an outcome Judge David Stras — a respected jurist on the U.S. Court of Appeals for the 8th Circuit — just last week called "confounding," even if correct. It’s time for the Supreme Court to intervene.
For over a century, the Supreme Court has held that lawsuits over air (and water) pollution that crosses state lines must be decided under federal law. This means overreaching states and cities cannot impose their environmental agendas on their neighbors or otherwise hijack the domain of federal environmental law, federal regulations and international treaties.
The Supreme Court unanimously extended this principle in American Electric Power Co. v. Connecticut (AEP). That case, decided in 2011, involved federal-law claims by eight states, New York City and others to compel certain power companies to abate their greenhouse-gas emissions.
The Supreme Court in Washington, D.C. (AP Photo/J. Scott Applewhite, File)
In an opinion by Justice Ruth Bader Ginsburg, the court concluded that applying federal law was appropriate, then agreed with the Obama administration that those claims couldn’t proceed in court at all because Congress has delegated the regulation of greenhouse-gas emissions to the Environmental Protection Agency (EPA) under the Clean Air Act.
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Dissatisfied with AEP, progressive states and cities have since changed tack in their litigation offensive against energy companies. In recent years they have launched a new frenzy of lawsuits demanding billions of dollars for damages allegedly related to past, present and future climate change. But this time, instead of relying on federal law, they have tried invoking state law.
The 2nd Circuit in 2021 dismissed such claims outright in City of New York v. Chevron Corp. There, New York City sued a handful of energy companies under state law for damages allegedly caused by climate change. The court concluded that "over a century" of Supreme Court precedent makes clear that federal law necessarily applies to lawsuits relating to air pollution that crosses state lines, which includes greenhouse-gas emissions. Following AEP, the Second Circuit dismissed the case.
That 2nd Circuit decision creates a split with the 1st, 4th and 10th Circuits, which have held that state law may apply to climate change lawsuits. Further complicating matters, a second split has developed after plaintiffs began bringing these state claims in state court, where they think the judges will be more sympathetic. Decisions in the 2nd, 5th and 11th Circuits support allowing the defendants to move such cases to federal court, but the 3rd, 4th, 8th, 9th and 10th Circuits disagree.
Three of these cases are now before the Supreme Court: the 3rd Circuit’s decision in Delaware v. BP America Inc., the 9th Circuit’s decision in Chevron Corp. v. San Mateo County and the 10th Circuit’s decision in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County. The energy companies in each case have asked the court to intervene and resolve both splits, reaffirming that climate change lawsuits are inherently governed by federal law and therefore belong in federal court.
A circuit split significantly increases the likelihood the Supreme Court will review a case, something progressives are desperate to avoid after their crushing (and unanimous) loss in AEP. So, in an effort to escape this review at all costs, they now minimize the splits in authority. They entirely discount the 2nd Circuit’s decision in City of New York, for example, because the plaintiffs there chose to file in federal court, rather than state court. But that distinction has no bearing on whether federal law inherently governs climate change lawsuits.
Climate activist hold a demonstration to urge President Biden to reject the Willow Project at the Department of Interior in Washington, D.C., on Nov. 17, 2022. (Jemal Countess/Getty Images for Sunrise AU)
More importantly, even if there is no circuit split — and there are two — the stakes are simply too high for the Supreme Court to ignore.
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Climate change lawsuits are currently pending against dozens of major energy companies in states across the country, including Rhode Island, New York, Maryland, Washington, California and Hawaii. These cases are undisguised "lawfare," which is a cynical ploy by environmental activists to achieve through courts what they cannot accomplish at the federal ballot box.
Judge Stras recognized the litigation as nothing more than an "attempt to set national energy policy" and "'effectively override... the policy choices made by' the federal government and other states." It threatens to interfere with U.S. energy independence, national security and economic growth.
President Biden speaks at the U.N. climate conference in Sharm El Sheikh, Egypt, on Nov. 11, 2022. (Sean Gallup/Getty Images)
It is well established that the Supreme Court will decide cases presenting "important" questions of federal law. The court has heard many such cases without circuit splits, including on ObamaCare, vaccine mandates, and, as particularly relevant here, greenhouse-gas emissions. The importance of the law governing climate change litigation, and where those cases should proceed, is no different. Even Judge Stras called out for the court to get involved.
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Progressive state and local officials should not be able to use their state laws and state courts to manipulate energy policy and hold every other state, the federal government, and the national energy supply hostage to their climate agendas.
The Supreme Court has a chance in BP America, Chevron Corp. or Suncor Energy to stop an abusive litigation practice, resolve circuit splits and preserve over a century of its precedent. It shouldn’t hesitate to do so.
CLICK HERE TO READ MORE BY C. BOYDEN GRAY
Amb. C. Boyden Gray served as counsel to the vice president in the Reagan administration, as White House counsel to President George H.W. Bush and as ambassador to the European Union and special envoy for Eurasian Energy under President George W. Bush. He is the founding partner of Boyden Gray & Associates PLLC.