TRENTON, N.J. (Legal Newsline) – A New Jersey federal judge has sent climate change litigation back to state court.
It’s the latest decision to do so, despite the insistence by defendants like Exxon and Chevron that the cases – products of alliances among government officials and private lawyers seeking a percentage of the recovery – raise questions more suited for federal jurisdiction.
Requiring energy companies to pay the costs of alleged climate change effects would basically rewrite regulations that are already approved by the federal government, the defendants say.
The issue has made it all the way to the U.S. Supreme Court, but there has not been a definitive answer. New York City, San Francisco and Rhode Island are among the plaintiffs pursuing these cases.
Judge Michael Vazquez on Sept. 8 remanded the City of Hoboken’s to New Jersey state court.
“(S)ince the Supreme Court’s decision in Baltimore III, Defendants now insinuate that this Court should wait until the circuit courts decide multiple issues of first impression upon remand, as they might impact Defendants’ numerous bases for federal jurisdiction in this matter,” the decision says.
“Given the fact that Plaintiff filed its motion for remand more than six months ago and this Court has no indication of when any circuit may address these issues on remand, the Court finds that it would not be prudent to await a decision from the appellate courts. Critically, no such matter is pending before the Third Circuit.”
Vazquez rejected the defendants’ argument that Hoboken has artfully pleaded around a federal claim by raising state law public nuisance concerns.
“(A)s ‘master of its complaint,’ Hoboken is at liberty to raise or not raise federal claims,” Vazquez wrote. “Here, Hoboken’s claims are premised on federal law and Defendants do not contend that Plaintiff omitted any facts to avoid federal jurisdiction.
“Although federal law may ultimately block Plaintiff’s claims through ordinary preemption, this is an affirmative defense rather than a necessary element of Plaintiff’s claims.”
In August, lawyers for Hoboken had to comply with a new New Jersey federal court rule that requires disclosure of any entities funding litigation in exchange for a percentage of the profit.
Lawyers at Emery Celli of New York and Krovatin Nau disclosed that a nonprofit called the Institute for Governance and Sustainable Development is “providing limited funding directly to Plaintiffs’ counsel for attorneys fees and expenses during the pre-discovery phase of this action.”
That “limited funding” is up to $483,500 for fees and costs. IGSD isn’t a traditional litigation funder in that it doesn’t appear to have a financial stake in the outcome but lawyers chose to disclose the money “out of an abundance of caution.”
“Plaintiff, the City of Hoboken, states that no person or entity is providing funding for attorneys fees and expenses in exchange for a contingent financial interest based on the results of the litigation,” the document says.