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):

• Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
• Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
• Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
• Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
• D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
• William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
• Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;

Comments

[Longtobefree]

I guess it doesn't matter that every single model of the climate disaster has been wrong.

I am going to start with the position that the only source of climate change is all the effort spent on writing about climate change.
So let's go wit h this: The first rule of fighting climate change is never talk about climate change.

[SRG2]

I guess it doesn’t matter that every single model of the climate disaster has been wrong.

You're a fucking liar.

https://eps.harvard.edu/files/eps/files/hausfather_2020_evaluating_historical_gmst_projections.pdf

https://skepticalscience.com/climate-models.htm

[Bob from Ohio]

Wow, climate hysterics agree that hysteria is totally justified! Its science!

[Nige]

The lie has been exposed and the science has been shown to be accurate, better get sarcaaaaastic!

[Brett Bellmore]

True, the models are all over the place, so some of them have been accurate. Now if we could only get the activists to stop appealing to the accurate ones as proof, then reverting to the inaccurate ones for hysterical predictions about boiling the oceans.

[Nige]

The models are pretty accurate, let's ignore them.

[SRG2]

This is what the liar actually said: " every single model of the climate disaster has been wrong."

That is very different from accepting that some models have been accurate, no?

[Brett Bellmore]

Sure, I was conceding that. It was stupid of him to claim that every single one was wrong, when you'd expect some of them to be right even if they were constructed by rolling dice. (And they're not THAT bad, really.)

Like I said, MY complaint is that you use the reasonable models to establish credibility, then the activists use the outlier models' predictions to make hysterical claims.

[Rossami]

You've already disqualified yourself by citing to "skepticalscience". That site has been repeatedly and thoroughly discredited as a source of anything even vaguely like science. Go to the original source. And more importantly, learn how to read and evaluate the study findings. Longtobefree is correct - the climate models have been shown to be incompetent to the task that they are put to. They remain fundamentally incapable of accomodating the water cycle (that is, clouds) and, despite what the media would have you believe, water is and always has been the dominant 'greenhouse gas' in the terrestrial atmosphere by at least one and probably several orders of magnitude.

[Bruce Hayden]

That is the problem. Weak theory (minimizes or ignores feedback), bad models, and dodgy, highly fudged, data. Destroying the economy over that is ludicrous. It’s not science (if it were, they would release all their work publicly) but sciency cargo cult religion.

[Nige]

All that and they still manage to be accurate. Wow. I hope none of that negatively affects the economies that are driving climate change.

[SRG2]

if it were, they would release all their work publicly)

If it weren't, the corporations wouldn't have needed to cover up their own research:

https://news.harvard.edu/gazette/story/2023/01/harvard-led-analysis-finds-exxonmobil-internal-research-accurately-predicted-climate-change/

[Nige]

In fact the models have been quite accurate.

[Brett Bellmore]

I can't help but think there's some kind of reliance interest argument against allowing these sorts of novel torts, whatever the topic.

Normally if you commit a tort, it was possible for you to know in advance that it would be considered a tort, and you accordingly had the ability to avoid committing it.

But in these cases where some formerly non-tortuous conduct is converted into a tort? You'd had no reason to avoid committing the act, the due notice is utterly absent.

So at a minimum, if formerly non-tortuous conduct is going to be considered a tort, it must only be prospectively, not retrospectively, and probably treatment as a tort must be delayed long enough for people to adjust their affairs.

You know, by all the fossil fuel suppliers boycotting Hawaii at once, and letting them see what they were signing up for?

[Bob from Ohio]

Its a money grab by government mainly. Here by a city but there are suits filed by states.

It worked for cigs and opiates. So why not.

[GKHoff]

The subject is far beyond the expertise of any court, state or federal. A jury pool would have to be limited to Cal Tech or MIT grads to have any chance of getting it right. But it would be very interesting to have various topics related to climate change debated by true experts in open court. Open debate on the science behind climate change is rare to nonexistent.

[Kazinski]

Really the only responsible thing the oil companies can do when faced by suits that claim they are causing billions of dollars of damages selling a legal product and following applicable law is to quit selling their product in the jurisdictions where they are sued.

[Brett Bellmore]

At which point Hawaii would level antitrust charges, ironically. They want the fossil fuel, and they want to punish selling it to them, at the very same time.