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The National Association of Manufacturers’ Supreme Court Amicus Briefs Highlight Federal Nature of Climate Lawsuits

Over the past several months, the National Association of Manufacturers has filed amicus briefs in the U.S. Supreme Court, where many of the climate cases are now being appealed on the question of whether climate lawsuits against oil and gas companies should be heard in federal or state court. The Court has not decided whether to hear the cases, and the NAM’s briefs support the Petitions for review. The latest amicus briefs were filed last week and over the holidays in cases brought by Rhode Island, Honolulu, and San Mateo.

In these briefs, the NAM explains its “grave concerns” about this attempt to “create liability over sales of lawful, beneficial energy products essential to modern life through state law.” Citing American Electric Power v. Connecticut, the NAM states that “claims over the effects of climate change implicate uniquely federal interests and are governed by federal law.” Therefore, the cases must be sent to federal courts; they are beyond the jurisdiction of any state.

The NAM’s amicus briefs make the following key points:

The Litigation Campaign

  • “These cases are ‘part of a coordinated, national litigation campaign over global climate change and an unapologetic effort to circumvent this Court’s ruling in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011). . . . Accordingly, the linchpin for this litigation campaign is the ability of the plaintiffs to avoid the federal judiciary. . . . What has become clear is that the state law packaging for these claims is solely a veneer. . . . Indeed, the lawsuits are being funded by organizations because the litigation raises inherent federal legal and energy issues. . . . [These issues] are critical to resolving two dozen pending state claims. The Supreme Court should grant review and hear the issue now out of a matter of judicial efficiency.’”

Climate Change Invokes Federal, Not State Laws

  • “[T]he plaintiffs have asserted their claims, even if inherently federal, are un-removable because Congress exercised its authority over these federal issues and displaced the federal common law in this area. The Second Circuit called the notion that such federal action on federal issues can undo federal jurisdiction ‘too strange to seriously contemplate.’. . . . [The Court] should not allow local governments to turn AEP’s displacement ruling on its head by using it here as the primary rationale for trying to circumvent federal jurisdiction on climate cases.”
  • “The state law theories invoked in this litigation are mere fig leaves. The various permutations of the cases clearly demonstrate that none of the theories of harm are moored to any plaintiff, defendant, or jurisdiction. The chain of causation, as the Court observed in AEP, is anything but local.”
  • “[T]he predictions of the Obama administration in AEP have been born out. The Solicitor General, in opposing that lawsuit, cautioned there would be ‘almost unimaginably broad categories of both potential plaintiffs and potential defendants.’ Brief for the Tennessee Valley Authority, AEP at 15 (Jan. 31, 2011). It would be ‘impossible to consider the sort of focused and more geographically proximate effects that were characteristic of traditional nuisance suits.’”

The Claims Are Removable Under the Federal Office Removal Statute

  • “Plaintiffs have argued that even though Petitioners have supplied the federal government with substantial quantities of specialized, non-commercial grade fuels under the direction and control of federal officers, removal is not proper under the federal officer removal statute. . . . This question [as raised in the Honolulu case] has implications for every manufacturer and business that supplies goods and services for the federal government.”
  • “America’s manufacturers, energy producers, and other entities must be willing to provide the federal government with their products and services…not refuse to provide them out of fear of local reprisal.”

Innovation, Not Litigation, Is the Best Path Forward

  • “There are less harmful ways to address impacts of climate change that do not have the downsides associated with this litigation. Federal and state programs have already made funds available that can provide local relief now.”
  • “Ultimately . . . the best way to address the impact that energy use is having on the climate is for Congress, federal agencies, and local governments to work with manufacturers and other businesses on developing public policies and technologies that can reduce emissions and mitigate damages. . . . The challenge facing society is to affordably and reliably provide this energy while mitigating its climate impacts. It is not to blame providers for selling the energy that people need to heat and cool their homes, fuel their cars, build schools, places of worship and workplaces, and turn on lights.”