LEGAL BRIEFS
Climate Cases Crest Into Florida: Reynolds v. Florida and What’s Next
Kyle Robisch
O
ver the past ten or so years, imaginative plaintiffs have pressed “climate change cases” in federal and state courts across the United States. In these cases, plaintiffs (most commonly states, municipalities, or environmentalists) sue defendants (often
energy companies, states, or municipalities themselves) seeking damages related to climate change. While these cases have proliferated across the country, Florida saw very few in the early going. That changed in 2018, when a group of young Floridians filed the first major climate change case in Florida, suing several state officials and agencies for “unconstitutional contributions to climate change and creation and operation of a fossil fuel-based energy system.” Though Florida’s appellate courts recently affirmed dismissal of that case, Reynolds v. Florida, No. 1D20-2036 (Fla. 1st DCA), there’s likely more climate change litigation coming Florida’s way.
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50 July 2021 • Florida Water Resources Journal
Climate Change Cases Generally
There are, generally speaking, four broad classes of climate change cases: S Municipalities suing companies under tort theories. S Shareholders and states suing companies under commercial litigation theories. S Environmentalists suing local, state, and federal agencies alleging constitutional violations. S Businesses suing regulators. The first three classes of cases are generally alike: plaintiffs stretching common, commercial, and constitutional law as far as they can. In the first kind of case, municipalities sue private companies, often energy companies, under state common law tort theories. For example, cities and states sometimes sue energy producers under public nuisance, trespass, negligence, failure to warn, and strict liability theories. These plaintiffs argue that, for instance, energy companies created a public nuisance (e.g., sea level rise), “failed to warn” about the effects of climate change, “defectively designed” fossil fuel products, and “trespassed” through sea level rise. The second sort of case usually involves shareholders (and sometimes state attorneys general) suing businesses under fraud and deception theories, contending that the defendants misled public and private investors about climate change risk, assessment, and mitigation. These cases commonly include state consumer protection act-based claims, like those anchored in the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Although energy companies are typical targets, these cases sometimes rope in pension funds, banks, and other financial services companies, too. In the third class of case, plaintiffs assert constitutional theories against governments and elected officials. These cases often argue that state officials are violating the plaintiffs’ “fundamental rights” including to a “stable climate” or “clean environment.” Reynolds (more on this shortly) exemplifies this bucket of cases. The last category of cases turns the tables: businesses suing regulators for denying permits or blocking business activity under the auspices of climate change mitigation.
