Climate Liability Suits: Is There a Path to Federal Court?

"Many of the most prominent court cases related to climate change in recent years have been decided by federal courts, including the Supreme Court, based on federal law. A growing number of cases, however, allege state-law claims against fossil fuel companies in state courts. A key issue that has emerged early in that litigation is whether those state courts will ultimately consider liability related to climate change, or whether federal courts should instead assume responsibility for those claims.

On July 7, 2022, in City and County of Honolulu v. Sunoco LP, the United States Court of Appeals for the Ninth Circuit affirmed an order from a federal trial court returning a climate change lawsuit to Hawaii state court, where it was filed initially. The case was the fifth federal appeals court case to consider whether federal courts should hear state-law climate lawsuits since the Supreme Court’s 2021 decision in BP p.l.c. v. Mayor and City Council of Baltimore. The Supreme Court in BP directed federal appeals courts to entertain a broader scope of arguments from the fossil fuel industry that climate liability suits belong in federal court—not state court.

Since BP, the First, Fourth, Ninth, and Tenth Circuits have considered appeals from the fossil fuel industry arguing that state-law climate lawsuits should be heard in federal court. Each court of appeals sent each case back to state court, frustrating defendants’ attempts to secure a federal forum. This Legal Sidebar provides analysis of legal issues related to removal of climate liability suits and considerations for Congress.

Climate Change Liability Lawsuits 

 Beginning in earnest in 2018, states and local governments began suing fossil fuel companies for damages caused by climate change, raising claims under state law in state court. The plaintiffs in these suits allege that climate change caused them to suffer eroding shorelines, damage to infrastructure, and public-health impacts due to increased frequency and severity of heatwaves, floods, and other extreme weather events. To address these alleged harms, the plaintiffs raised legal theories that traditionally have been the domain of state law, such as claims of public and private nuisance, trespass, and violations of consumer protection laws that ban deceptive trade practices for failing to warn about the potential harms of producing and using fossil fuel products. They have avoided claims that would generally implicate questions of federal law, such as whether the defendants are required to reduce their fossil fuel production or greenhouse gas emissions.

The defendant companies have tried, so far unsuccessfully, to remove a number of these cases from state court to federal court, seeking what they expect will be a friendlier forum. In support of their efforts to remove these cases, the defendants contend that even if the plaintiffs invoke state law for their causes of action, any decision in the plaintiffs’ favor will have the effect of regulating interstate greenhouse gas emissions—an area the defendants argue is reserved exclusively for federal jurisdiction. In addition, the defendant companies argue, any damages incurred by the plaintiffs are the result of aggregate emissions of greenhouse gases globally and over many decades. Thus, because the plaintiffs’ claims necessarily implicate interstate and international emissions, the claims must be heard in federal court..."
Climate Liability Suits