The fight over environmental liability has returned to the US Supreme Court. In its first standstill in 2011, the Connecticut Court v American Electric Power defeated the board on finding that federal clean air law superseded federal common law damages claims for damage caused by climate change. Noting the fragility of federal customary law in the face of conflicting federal laws, Judge Ginsberg wrote unanimously in a court that Congress had overturned the federal customary law demands in granting the EPA power to regulate greenhouse gases – even if the agency chose, never wield this power.
A decade later, the battle resumed in a new forum: the state courts under state law. Over 20 lawsuits before federal and regional courts are simmering in pre-trial phases and are now about to be discovered. The defendants, mostly large energy and chemical companies, have referred the cases to federal courts, and hopefully under federal law. So it is not surprising that the new climate contenders are now arguing first about where and how they will ultimately fight.
Earlier this week, the US Supreme Court rushed back into the fray. The Court has heard oral submissions in BP PLC v City of Baltimore, Fourth Circuit, on relatively abstract questions of appeal jurisdiction. This Anodyne coverage, however, should not obscure the petition’s true aim: to expand the scope of immediate federal review and control of tort claims.
The specific dispute in the BP v Baltimore case focuses on the breadth of appeal review of pre-trial detention warrants, such as the federal district court’s decision to reject the defendants’ attempt to use the Federal Official Removal Act to refer the case to federal court. The company’s petitioners have asked the court to review on appeal the entire district court order denying removal, not just the federal official’s question. Baltimore and respondents instead want the court to interpret the Appeals Review Act to limit the review to just the federal official’s question.
This grain of sand contains a universe of important legal and political implications for climate liability law. Significantly, companies have already used this narrow procedural platform to petition the Court of Justice to determine that federal law governs all of these tort claims because of their unique interstate nature. When Judge Barrett asked if it would be “fairly aggressive” for the court to resolve the federal legal issue now, Kannon Shanmugam responded boldly, arguing on behalf of the company’s petitioners that the court should resolve the issue – and that the answer was “clear” . This state tort law should not regulate claims for climate damage.
Most of the oral interviews, unsurprisingly, focused on narrow legal interpretations. For example, the petitioners stressed that the simple text meaning of “order” in the law implies that the entire order will be subject to appeal review, not just the decision of the federal official. Other judges focused on the obscure doctrine of ratification, which emphasizes that when Congress revises a statute without changing the language in question, it is implicitly adopting the prevailing interpretation of legal language. The judges appear to be tightly divided, which may be important as only eight judges were involved in the dispute (Justice Alito presumably withdrew because of its holdings in energy company stocks).
Ultimately, other political and legal developments could precede the Court’s decision on this case. As the United States appeared alongside corporations today to support their petition, President-elect Biden’s earlier campaign statements endorsed the state litigation related to climate crime. As a result, the US Department of Justice could change its stance on future attempts to dispose of lawsuits in state courts. Immediately before the court heard BP’s arguments against Baltimore, the DC Circuit struck down the Trump Administration’s Affordable Clean Energy Rule. If the Biden EPA responds with immediate and extensive efforts to regulate greenhouse gas emissions from the energy and chemical sectors, the scope for parallel government liability for greenhouse gas emissions may be reduced accordingly. Ultimately, any attempts to take federal legislative action against climate change will almost certainly trigger calls for express exemption from government liability claims for tort. As a result, severe damage and injuries from climate change are likely to last centuries, but the state liability window for them cannot last nearly as long.