Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Anticipated
In recent years, several municipalities have sued fossil fuel producers seeking compensatory damages for the consequences of climate change. Because federal common law nuisance claims are moved under AEP c. Connecticutthese suits all plead common law claims of the state, including public nuisance.
Much of the action in these cases has focused on whether they can or should be sent to federal court. A case, BP PLC v Baltimore Mayor and City Council, appealed to the Supreme Court on this question (or, more precisely, on the question of the scope of appellate review of requests for removal). Most municipalities have filed their claims in state court, but fossil fuel defendants would prefer the cases be brought in federal court because both sides believe state courts will be less supportive of some of the defenses. based on federal fossil fuel company law, and fight dismissal is a way for defendants to delay trial on the merits.
A case that avoided the jousting on the withdrawal is New York City vs. Chevron, which New York chose to file in federal court. Since they were already in federal court, the fossil fuel defendants claimed the case should be dismissed on, among other things, political issues and preemptive grounds. The district court agreed, as did the United States Court of Appeals for the Second Circuit.
In my opinion, the Second Circuit got it terribly wrong in this matter. As I explain in this new article, “Displacement and pre-emption of claims related to climatic nuisances“, federal law does not prevent nuisance claims based on state law for interstate air pollution or climate damage. In dismissing the lawsuit, the Second Circuit brings together many powerful political arguments against the fight against the climate change through nuisance claims brought by local governments, it misapply the existing doctrine of preemption and displacement and bases its continuation on a fundamental misconception of the relationship between federal and state environmental regulation.
There may be good reasons for preferring broad national climate policy to piecemeal litigation, but the decision whether or not to forestall such claims is a decision that should be made by lawmakers, not the courts, and under existing law, Congress has done nothing to pre-empt or otherwise impede the state. -nuisance claims based on climate change law (or air pollution more generally). Whatever legal issues the specific claims pleaded by New York City may face (potentially including personal jurisdiction and the dormant trade clause, among others), preemption is not one of them.
A draft of my article, which was prepared for a Research Roundtable on Public Nuisances sponsored by the Law & Economics Center, is now on SSRN. It will be published in a Journal of Law, Economics and Politics symposium. The summary is below.
New York City and other municipalities have filed nuisance lawsuits based on state law against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were deemed superseded by federal environmental laws. Defendants argued that claims based on state law should also be anticipated. Yet, while the enactment of federal regulatory statutes supersedes federal common law actions for interstate pollution, such enactments do not necessarily preclude state common law actions, even when pollution crosses state lines, because it is more difficult to get ahead of the common law of the states than to displace federal common law. In New York City v Chevron Corp., however, the United States Court of Appeals for the Second Circuit found that government plaintiffs could not “use state tort law to hold multinational oil companies liable for damages caused by the global greenhouse gas emissions”. While there may be strong political arguments for this outcome, the legal basis for this conclusion is weak. This article provides background information on the use of common law suits to solve pollution problems and the history of pollution control measures at the state level, before describing the current doctrines of displacement and preemption. , and to explain why the legal arguments for anticipating climate change based on state law suits are insufficient to warrant dismissal of these cases, even if equivalent common law federal actions would be properly misplaced.