The Volokh Conspiracy

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Climate Change

Are State Law Climate Change Tort Suits Preempted by Federal Law?

A recent panel discussion on whether state and local suits against fossil fuel producers are preempted by federal law (and my arguments for why the answer is "no, they are not").


Honolulu, like many state and local governments around the country, is suing fossil fuel companies alleging a range of state-law torts related to climate change. The defendants in such cases have been trying to get the suits dismissed, or transferred to more favorable forums.

Initially the defendants sought to have the cases removed to federal court, but those efforts universally failed. Now they are trying to claim that the various state-law claims are preempted by federal law.

The Hawaii Supreme Court rejected the preemption claims in Honolulu v. Sunoco. Now Sunoco and the other defendants are seeking certiorari on the preemption claims.

As long time readers know, I believe the argument that these tort claims are preempted (or displaced) by federal law are baseless. (My longer article on the subject is here.) The federal common law of interstate nuisance may have been displaced by federal environmental regulation, but the Supreme Court has explicitly held that federal environmental statutes do not preempt state law claims (though they do prevent plaintiffs in one state from extra-territorializing the substantive standards of their state's laws). Indeed, other than with regard to product standards, federal environmental law rarely preempts state law. Congress could preempt much state regulation and litigation concerning climate change, it just has not done so.

Earlier this week, I participated in a webinar on this issue with AEI's Adam White, NYU law's Richard Epstein, and Alabama Solicitor General Edmund LaCour. The webinar was sponsored by the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School of George Mason University. We had a few technical hiccups, but I think it was a substantive and worthwhile discussion (even if it was three against one).


Here are my prior posts on climate-related tort litigation (as distinct from the Juliana climate litigation):