“Don’t put off until tomorrow what you can do today.”
This maxim has been (perhaps falsely) attributed to Benjamin Franklin, Thomas Jefferson, and others, and provides sage advice to the U.S. Supreme Court. This is reflected in a pending ruling asking us to decide today whether federal law preempts state common law public nuisance and similar claims seeking relief for injuries allegedly contributing to the effects of climate change. This is especially true when deciding whether to grant a petition.
Dozens of lawsuits have been filed in recent years to hold energy companies and other companies accountable for their alleged contributions to climate change. In one of the lawsuits filed in Hawaii state court last October, oil company defendants argued that federal laws, such as the Clean Air Act, supersede state laws. This means that by legislating specifically for this area of interstate pollution, Congress has prohibited the use of state court litigation to control it.
The Hawaii Supreme Court has expressly found that the state’s claims cannot be preempted. In February, Sunoco, Royal Dutch Shell, and the other defendants in the case filed a petition for certiorari in Sunoco LP et al. v. City and County of Honolulu, asking the Supreme Court to review and resolve the preemption issue.
Partly because the court’s own precedents are unclear, it is inevitable that it will have to make a decision on this issue at some point. In 2011, the court held in AEP v. Connecticut that plaintiffs cannot bring public nuisance claims under federal common law for alleged climate change impacts because federal common law in this area has been superseded by the Clean Air Act. held very clearly.
The court left open the question of whether the Clean Air Act similarly preempts state-level climate change claims in state or federal courts. Given that Congress has reserved that function to itself, both state and federal common law should be unavailable as tools for judicial climate policymaking. The problem is that courts didn’t say much in 2011, leaving litigants still floating in the ocean.
If the courts remain silent on this issue, these lawsuits will continue to increase. Alternatively, if the court does not want to extend the logic of the AEP case to preempt state law climate change lawsuits, the court could say so and signal to Congress that it needs to do more if it wants to preempt. should be sent.
Taking on the Honolulu case gives the judge a chance to resolve the situation. They have to do it – if not today, then someday. It is unacceptable for the courts to perpetuate the mess they have created, when the economic incentives to bring these cases ensure that they will continue to increase. As cash-strapped states, counties, and local governments look to climate-related damages as a way to solve their budget problems, affiliated fee-for-money plaintiffs’ attorneys, of course, have a chance to profit. I believe.
Indeed, conventional wisdom surrounding whether to grant a certification application often says that the issue needs to significantly “percolate” in the courts below before the Supreme Court takes it up. Call it a “crowdsourcing” priority to help develop information that will help the court in its final assessment. But penetration is not a concern here. First, some penetration has already occurred. Several lower courts have already taken up the issue of preemption in interstate pollution lawsuits, with mixed results.
Furthermore, the issue of preemption at issue is purely a matter of statutory and constitutional interpretation. Waiting for more cases to decide the same question of pure interpretation does not add new information that the court cannot independently evaluate. There are no complex and nuanced applications of the law to the facts or other difficulties in this particular preemption issue that could help lower courts elucidate in detail. The Clean Air Act and the Constitution either create a pre-emption right or they don’t.
Finally, here are the important factors that favor the granting of the certificate. The Supreme Court’s Rule 10(a) states that one of the “compelling reasons” is that “the courts of appeals of the United States may… In April 2021, the U.S. Court of Appeals for the Second Circuit dismissed a public nuisance climate lawsuit brought by the City of New York on the grounds that it was preempted by state law claims. The Hawaii Court of Final Appeal expressly rejected the Second Circuit’s decision and refused to apply it.
Rule 10(c) also lists another “compelling reason”: “The state court…” . . “Determined an important question of federal law that has not been resolved by this court but should be resolved, or determined an important federal issue in a manner that is inconsistent with a relevant decision of this court.”
There is no doubt that the federal government has the power to exclude state tort laws with respect to interstate and global pollution, and that the rationale for the AEP in the context of climate change is clear to state common law public nuisance laws. The question of whether this should be extended to preemption of claims is an important one. It should be resolved in the Supreme Court.
Indeed, these questions of pre-emption rights and the meaning of the AEP will have to be resolved at some point. There is therefore good reason to resolve it now, before large amounts of resources are wasted and energy security is disrupted during a prolonged period of uncertainty.
Donald Kochan is a professor of law at George Mason University’s Antonin Scalia Law School and executive director of the Center for Law and Economics.
Copyright 2024 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
