The NAM filed an amicus brief in the Supreme Court of the United States urging the Court to review Baltimore’s climate change public nuisance lawsuit. As the brief explains, the NAM is committed to “national efforts to address climate change and improve public health through appropriate laws and regulations. The NAM has grave concerns, however, about the attempt here to circumvent the political branches and traditional liability law” to set national energy policy in state courts.
Baltimore is one of several cities to file state public nuisance claims against energy manufacturers. The companies had removed the case to federal court, but the case was remanded back to Maryland court. When the U.S. Court of Appeals for the Fourth Circuit agreed to let the case go back to Maryland state court, it held that it could look at only one of the many legal issues at hand—whether the companies were acting as federal officers because the federal government had authority to control some of their operations. Other Circuits have held in these circumstances the entire order is reviewable, not just the part on the federal officer removal statute. The companies are asking the Supreme Court to resolve this split among the circuits and, ultimately, determine the case belongs in federal court.
The NAM’s 17-page brief explained the reason why this issue is particularly important in the context of climate litigation, which extends far beyond just this one case. There are multiple cases like this one pending in the federal courts, and granting review here could preserve judicial resources by resolving the jurisdictional issues that are common to all of the cases. It would also defeat a purposeful effort by the advocates and lawyers behind this litigation to leverage the differences among the courts.
The NAM’s brief explains: “[B]y filing their claims in multiple jurisdictions, the organizers of this litigation are seeking to increase the odds a court will allow one of the cases to proceed, which they believe will be further increased if they can avoid the federal courts. . . . Policy advocates should not be rewarded for filing claims in multiple jurisdictions when there is a Circuit split on key issues of appellate review. The federal judiciary should speak with a single voice and dissuade any such attempts at forum shopping.”
The brief also underscores the fact that climate change public policies are inherently national in scope and should be heard in federal court, despite the plaintiffs’ concerted efforts to avoid the federal courts. The brief details how, after the U.S. Supreme Court rejected the last round of climate change tort litigation in American Electric Power v. Connecticut, “the advocacy groups and lawyers intent on using tort litigation to drive climate change public policy convened in La Jolla, California, in 2012 to brainstorm on how to re-package the litigation” to look like state tort claims.
As the brief states, “the claims may be packaged under state tort law, but their goals, the nature of the litigation, and the remedies they seek are all inherently national.”
“Climate tort litigation undermines the careful balance best struck in the political branches when setting national environmental policy. These public policy decisions are based on a multitude of factors including energy independence, the stability of the electric grid, and affordability for families and businesses across the country, in addition to climate change. Such decisions should not be driven by individual judges in individual courtrooms in individual states based solely on a narrow set of climate allegations.”
“To be sure, granting the Petition and assigning it to federal courts is not surrendering to climate change. Rather it places the debate where it must be considered: Congress and the federal agencies. The best way to address climate change concerns and impacts is for Congress, federal agencies, and local governments to work with America’s manufacturers on policies and new technologies that reduce emissions. Innovation and collaboration, not litigation, remain the proven ways America has always brought about the type of society-wide technological advancement needed to address this global challenge.”
“The production and use of oil and gas are hardly public nuisances. They are essential to modern life, and their risks and externalities must continue to be managed and reduced. Only Congress and federal agencies can balance these interests, assign responsibility, and allocate funding in light of the broad public welfare considerations at issue.”