For years, courts have grappled with the question of whether climate lawsuits filed by state and municipal governments belong in state or federal court. We could soon have more clarity on this question.
The U.S. Supreme Court continues to consider whether to hear Boulder v. Suncor, a case involving local jurisdictions in Colorado that have sued energy companies for allegedly causing climate change. Justices last fall took the unusual step of asking the U.S. Solicitor General’s opinion in the case. Solicitor General Elizabeth Prelogar’s brief was filed on March 16, where she narrowly argued that Boulder’s claims are governed under state law. From a big picture standpoint, Prelogar erred in her opinion — and if the Supreme Court agrees with her, there could be huge consequences for energy consumption and the rule of law.
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The state versus federal court venue question might sound like a legal technicality, but there are larger issues at play here. On a broader level, a Supreme Court decision that state courts will hear climate lawsuit cases could open the floodgates for plaintiffs’ attorneys everywhere to sue any industry just for providing products that people rely on. This could mark legal chaos, with fifty state courts applying 50 different state laws for virtually identical allegations. This messy scenario is why the Supreme Court should ensure that climate cases proceed in federal court.
Through my three terms as Maine's attorney general, I concluded that courts cannot solve all of America’s problems. That’s especially true for climate change, a worldwide phenomenon involving carbon emissions that travel the globe. Nonetheless, since 2017, oil and natural gas producers have been bombarded with meritless lawsuits from state and local governments that seek to hold them financially liable for climate change costs, including local infrastructure improvements.
Carbon emissions come from sources across the world. They are produced by energy users, from farmers to builders to homeowners. State courts are not equipped to resolve such a worldwide problem. As the 2nd U.S. Circuit Court of Appeals explained in its dismissal of New York City’s climate lawsuit, “emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China.” Pinning the entirety of global climate change on a handful of companies is illogical, which is why the two dozen climate suits filed so far have failed to succeed.
In January 2011, the Obama administration’s acting solicitor general, Neal Katyal, urged the Supreme Court in American Electric Power v. Connecticut to overturn the 2nd Circuit’s decision to allow states, activists, and New York City to sue utility companies over climate change. Katyal argued that climate issues require “political or regulatory — not judicial — resolution” and that U.S. climate policy can’t be guided through an “open-ended series of common-law suits in far-flung district courts.” The Supreme Court agreed, dismissing the climate lawsuit unanimously, behind a majority opinion authored by the late Justice Ruth Bader Ginsberg and other justices' concurrences.
With climate lawsuits failing on merit in federal venues, climate lawsuit plaintiffs have turned to state courts, hoping for the proverbial “home court advantage.” If the Supreme Court ultimately favors state jurisdiction, it would run counter to long-standing legal precedent and the Obama administration’s position.
The Supreme Court’s involvement is a high-stakes turning point. Allowing state jurisdiction for climate lawsuits would flood state dockets with litigation targeting the same energy companies with the exact same claims. Plaintiffs’ attorneys nationwide would want a slice of the pie. Who knows which sector could be next? For example, the door would be open to sue grocery stores for selling red meat that causes heart disease, which many would-be plaintiffs could inevitably claim.
Climate lawsuits are not the path to a better global future. Biden's solicitor general arguably made a misjudgment, focusing on a narrow question instead of realizing the broader ramifications. Let’s hope the Supreme Court justices see the big picture. If not, America’s energy future and the broader rule of law could be in serious peril.
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Andrew Ketterer is a partner at Ketterer & Ketterer Law Firm. A Democrat, he served as Maine's attorney general from 1995 to 2001 and as the president of the National Association of Attorneys General from 2000 to 2001.