WASHINGTON (Legal Newsline) - The U.S. Supreme Court’s decision following arguments this week on a climate change lawsuit could decide the jurisdictional fate, and the ultimate outcome, of more than 20 nearly identical lawsuits from around the country that target the energy industry.
The industry would prefer that the cases are argued in federal rather than state courts, and the justices seemed open to that point of view during procedural arguments this week, according to Phil Goldberg, special counsel for the Manufacturers’ Accountability Project (MAP).
“Climate change is inherently a federal issue, and there should be a shared effort with all branches of the federal government working with business to find a solution,” Goldberg said.
In the case before the Supreme Court, the city of Baltimore is suing 26 energy companies, including BP, Citgo and Chevron, arguing that the companies concealed knowledge about emissions from burning fossil fuels (greenhouse gas emissions), and are, therefore, responsible for everything from damage caused by flooding in the city to adverse health impacts on its citizens.
The legal strategy against the companies is a repackaging of a series of suits derailed in 2011 when SCOTUS ruled 8-0 in American Electric Power Co (AEP). v. Connecticut that corporations cannot be sued under federal public nuisance laws since responsibility for regulating air emissions lies with the Environmental Protection Agency.
The new lawsuits cite state public nuisance laws, consumer protection and other state statutes to pursue the argument in state courts, Goldberg wrote in an amicus brief filed with counsel for the National Association of Manufacturers.
“After the Court’s ruling in AEP, the strategists behind this nationwide litigation campaign began developing ideas for circumventing the Court’s ruling,” the brief said. “They spent several years developing new legal theories aimed at achieving comparable national regulatory goals as AEP, but that would appear different from AEP to some courts.”
The latest round of lawsuits began appearing in 2017, presented as stemming from a grass roots movement. In reality, those behind the lawsuits are what MAP describes as a “tightly knit network of academics, foundations and activists” working with local governments.
“The idea is to draw state courts into establishing national public policy affecting carbon emissions,” Goldberg said. “It’s an undemocratic way of establishing a carbon penalty so that driving your car and running your factory becomes much more expensive to do.”