Twitter Icon Facebook Icon Youtube Icon

No Matter Which Way You Turn, Climate Litigation Hits the AEP Precedent Roadblock

Plaintiffs and supporters of the climate lawsuits filed against energy manufacturers are cheering recent decisions by federal judges to send cases in Rhode Island, Baltimore, and several California jurisdictions to state courts. The proponents of the cases are desperate to escape federal court, which have continually rejected climate liability suits. But, those cheers will be short-lived, as the cases have no more validity in state court. Mitigating the impacts of climate change is not a liability issue for either state or federal court. Selling and using energy is not a violation of tort law; it is necessary to modern life. Figuring out how best to address climate change concerns along with other key aspects of national energy policy, including affordability and energy independence, is the province of Congress and federal agencies.

In American Electric Power (AEP) v. Connecticut, the Supreme Court made these points abundantly clear, stating that the judiciary is not the venue for making climate change public policy judgments:

  • Justice Ruth Bader Ginsburg, who wrote the unanimous majority opinion, stressed that setting national energy policy to account for climate change concerns was “within national legislative power,” and that Congress and EPA are “better equipped to do the job than individual district judges issuing ad hoc, case-by-case” decisions. The Court also warned that there is “no room for a parallel track” of tort litigation over policies impacting GHG emissions.
  • The Court also noted the public policy at issue in global climate change tort cases is “of special federal interest” and that “borrowing the law of a particular State would be inappropriate.”
  • During AEP’s oral arguments, Justice Anthony Kennedy identified the awkwardness of having only a federal cause of action before them, saying that “[i]t would be very odd” or illogical for state courts to set national caps on GHG emissions when federal courts are barred from doing so.

As Justice Kennedy and the Court appreciated, if federal courts do not have the institutional tools to regulate emissions, state courts also do not. What’s more, it would be inappropriate for decisions integral to national energy policies to be made by 50 states’ judges issuing such “case-by-case” decisions. National energy policy belongs in the hands of the legislative and executive branches, not judges sitting on benches scattered throughout the nation.

Finally, there is no violation of state tort law here. The Rhode Island Supreme Court, more than a decade ago, rejected a similar attempt to use the tort of public nuisance against manufacturers—that time Rhode Island sued former manufacturers of lead paint to pay for all lead paint removal in the state. The Court unanimously dismissed the suit as violating “basic fairness.”

As the National Association of Manufacturers wrote in its amicus brief to the Ninth Circuit supporting Judge William Alsup’s dismissal of the San Francisco and Oakland lawsuits, “Under all legal theories, state and federal, all courts to consider this issue have ruled that there is no viable common law cause of action against private actors for harms caused by global climate change or any weather event influenced by climate change.”

What has become clear is that climate change is a shared global challenge whose solution won’t be found in a courtroom. Rhode Island and the other communities that want to do something about climate change should join with manufacturers on energy innovations, not target them for baseless litigation.