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The Regulation Through Litigation Strategy of Climate Cases Is Becoming Clear in State Cases

Companies in the oil and gas industry that have been sued in the climate change cases have been filing their motions to dismiss, now that many of the cases have been officially sent to state courts. These motions explain why the law does not support these claims. In each case—from those brought by New Jersey, Delaware, Hoboken, Anne Arundel County, and the City of Annapolis, among others—the companies are exposing the litigation’s fundamental problem: the governmental plaintiffs cannot use their own state laws to regulate oil and gas companies around the country—and globe.

As the companies explain in detail in their briefs, each lawsuit is trying to impose liability for the companies’ production, sale and marketing efforts outside of the places where the lawsuits are brought, regardless of whether those endeavors were entirely legal in the states, or even other countries, where they occurred. They also try to impose liability against a handful of U.S. or European companies—and which ones vary widely among the lawsuits—even for conduct caused by companies in China, Russia, Saudi Arabia and other countries. That is not a proper use of state tort and consumer protection laws.

For example, in the motion to dismiss in Hoboken’s case, the defendants wrote: “Plaintiff seeks damages for claimed injuries in Hoboken allegedly caused not by actions in New Jersey, but by the cumulative impact of actions taken in every State in the Nation and every country in the world.”

As a result, the brief continues, it is inappropriate to apply any one state’s law to conduct of companies around the world. Indeed, because the lawsuits hinge on interstate and global emissions of greenhouse gases, the claims raise issues that are appropriate only for the federal government: “Plaintiff admits that its alleged injuries all stem from interstate and international emissions. … The relief Plaintiff seeks—and the global causal mechanism upon which it depends—trigger the exclusive application of federal law.”

In the motion to dismiss the case brought by Delaware, the defendants further explain that because these cases, in actuality, are seeking to regulate worldwide oil and gas industry, they raise public policy matters for Congress and federal regulators, not liability issues for state courts. Here, Delaware is trying to “regulate the nationwide — and even worldwide — marketing and distribution of lawful products on which billions of people beyond the state’s jurisdiction rely. . . . Allowing such claims to proceed would not only usurp the power of the legislative and executive branches (both federal and state) to set climate policy,but would do so retrospectively and far beyond the geographic boundaries of [the] State.”

It has become clear that the local governments bringing these cases are no longer denying that this is the impact of their lawsuits. During oral argument in Honolulu’s case, the city’s attorney was specifically asked if they were trying to impose liability under Hawaii law for conduct outside of Hawaii and the counsel said yes they were—wherever the conduct occurred.

Federal courts have already rejected such a wide-ranging view of state law, which is why the plaintiffs have been trying to avoid the federal judiciary. In 2021, the U.S. Court of Appeals for the Second Circuit, in dismissing a similar climate lawsuit brought by New York City, invoked the U.S. Supreme Court’s ruling in American Electric Power v. Connecticut (AEP) that claims relating to emissions in a multitude of states are “of special federal interest” and that “borrowing the law of a particular state would be inappropriate.”

There is no doubt that climate change and its impacts raise critically important public policy issues. Congress and federal agencies, though, are the proper branches of government for addressing them. Put simply, Delaware, Hoboken and Baltimore cannot say what is lawful or unlawful in Texas, Florida, Missouri, Indiana or any other state, let alone any other country. Only the federal government can make laws for the entire nation and negotiate international standards.