Last week, the U.S. Court of Appeals for the Eighth Circuit heard oral arguments in Minnesota’s climate lawsuit against energy manufacturers. As several reporters noted, the three judge panel seemed unconvinced by Minnesota’s assertion that its case belongs in state court rather than federal court.
Judge Jonathan Kobes observed that the lawsuit “necessarily crosses that boundary because it relies on interstate and, in fact, global emissions.”
Indeed, if this is an emissions case—if a finding for liability in the case would impact the regulation of greenhouse gas emissions—it would clearly be a federal issue and should then follow the precedent set by the U.S. Supreme Court’s ruling in AEP v. Connecticut.
The plaintiffs have tried arguing that the cases are not about fossil fuel emissions, but in the next breath assert the cases are about how defendants’ conduct had the impact of “exacerbating emissions.”
That contradiction was readily apparent during the Eighth Circuit argument. Judge Kobes asked whether Minnesota’s case is actually about harms caused by interstate emissions. MN’s attorney offered this euphemism, saying emissions “are part of the avenue of delivery of the injury.” As defense counsel rightly pointed out, “avenue of delivery of the injury” is just a long way of saying caused by.
Further, Judge David R. Stras noted, Minnesota’s complaint “mentions the words ‘greenhouse gas,’ ‘air pollution,’ ‘emissions,’ and ‘climate change’ more than 300 times” – suggesting it is clear what the complaint is about. By contrast, plaintiffs say the case is about alleged deception, and Stras said, “from what I can tell, there’s only a single alleged misstatement” from one defendant to support that claim.
“So, I don’t quite know how you can say that this is not about interstate pollution,” Judge Stras concluded, adding, “It seems like the entire case is about federal law.”