On January 19, the Supreme Court of the United States will hear oral arguments in its review of the City of Baltimore’s climate tort lawsuit against energy manufacturers. In the case, the manufacturers are asking the high court to resolve a split in opinion regarding the scope of appellate review among the circuit courts and, ultimately, find that Baltimore’s case should not be heard in state court.
The Court will consider a procedural issue related to what appellate courts should consider when reviewing cases. In March, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s decision to keep Baltimore’s lawsuit in Maryland state court, after holding that it could consider only one of the many legal issues argued by the manufacturers. Other appellate courts, however, have held in similar circumstances that the entire order is reviewable; given this discrepancy between courts, the manufacturers filed a petition to the Supreme Court on March 30, 2020, which the Court agreed to hear in October.
The Supreme Court will weigh this procedural issue, and in doing so, will likely provide guidance on whether Baltimore’s case—and the several other similar cases—belongs in state or federal court. This issue is particularly important in the context of climate litigation and extends far beyond just the case at hand, as Special Counsel for the Manufacturers’ Accountability Project Phil Goldberg said in a statement:
“The U.S. Supreme Court should recognize that this case and the others like it do not belong in state courts. Although Baltimore’s claims may be packaged under state tort law, their goals, the nature of the litigation, and the remedies they seek are all inherently national. Developing national energy policy is a legislative and regulatory matter and should not be driven by a number of state court judges across the country based only on a narrow set of allegations.
“At the end of the day, we are confident the Court will find—as it did in American Electric Power v. Connecticut—that climate change requires a comprehensive response from policymakers, not a liability ruling from state or federal courts. The best way to address climate change is for Congress, federal agencies, and local governments to work with America’s manufacturers on policies and new technologies that reduce emissions. Rather than scapegoating an industry on which we all rely, we should be working together to solve this shared global challenge.”
In November, the National Association of Manufacturers filed an amicus brief encouraging the Supreme Court to reverse the Fourth Circuit’s finding. In the filing, the NAM explains that Baltimore “seeks to use state tort law to regulate the national production and sale of energy products that have been essential to modern life since the industrial revolution.”
The 28-page brief underscores that the Supreme Court has already indicated that litigation tied to national energy policy on climate arises under federal law, when the “Court unanimously ruled in AEP that the Clean Air Act displaced federal common law claims over GHG emissions.” Bolstered by other cases over the years, it became clear that, “Climate litigation targeting private actors were inherently federal in nature, regardless of the cause of action, court, parties involved, or whether the claims were stated under federal or state law.”
Further, the brief explains, “In an effort to avoid a proper assessment of the inherently federal nature of this litigation, the organizers of this legal campaign carefully chose the jurisdictions where these cases have been filed, both in terms of the states and federal circuits.”
“Here, the Court should again take the opportunity to avoid years of potentially protracted, expensive state litigation designed to achieve federal extrajudicial purposes. It would be a waste of judicial resources for Plaintiffs to start discovery or have a state trial when a full evaluation of their legal claims would dictate that their lawsuits belong in federal courts.”
The NAM continues, “[The] penalty these lawsuits seek to impose would be assessed irrespective of the ability of families and businesses to pay more for their energy needs, the impact on the U.S. economy and energy independence, or the other imperative factors that go into America’s national energy policies.”
The Supreme Court should recognize the inherently federal nature of these claims and permit the litigation to move forward in the appropriate forum.