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Global actions, local liabilities: Looking Ahead on U.S. and Global Climate Tort Liability Lawsuits

U.S. climate change politics have waxed and waned over the past 30 years, but climate litigation continues to steadily expand against the tides. The term “climate litigation” itself has become a conceptual big tent that includes a motley collection of lawsuits seeking to force government action, challenge administrative decisions on greenhouse gas permits and emission limits, enforce human rights and constitutional protections against harms from climate change, and impose liability on emitters of greenhouse gases for damages from climate change allegedly caused by their emissions. Trial lawyers now specialize in the field, and some law firms have built active climate litigation practice groups.1

The numbers bear out this trend. According to the latest tally of global activity in climate change litigation, plaintiffs have filed a total of 1,587 cases of climate litigation in at least 37 different national court systems or international bodies since 1986 —and most of them in the past decade. While the majority of those cases initially arose in the United States (1,213), lawsuits also appeared in Australia, the United Kingdom, and European bodies and courts.2 Even the global South has begun to actively participate in the growing wave of climate lawsuits and transnational litigation.3

As international climate litigation has grown, a mounting portion of it explicitly seeks to force strategic change by governments. Most of these courtroom battles, of course, still center on the particular interests of parties affected by a local action or agency decision (e.g., approval of a permit for an LNG terminal). But other lawsuits explicitly aim to promote changes in public policy on climate, force changes in behavior from key actors, and raise public awareness of particular climate risks. These strategic lawsuits have absorbed a growing amount of attention and resources as the courts and other judicial bodies find themselves slowly pushed into the center of the push to achieve an effective climate response.

One category of climate litigation in the United States seeks to combine these strategic goals with more pecuniary interests: climate tort liability actions. These lawsuits allege that emitters of greenhouse gases, or purveyors of products that emit greenhouse gases when used (such as liquid hydrocarbon fuels or thermal coal), bear liability for damages caused by climate changes due, in part, to their emissions. These claims originally sounded in either traditional tort doctrines such as negligence, nuisance, or trespass, or they drew on strict liability doctrines for allegedly ultrahazardous activities. Later lawsuits also alleged that some companies, including large fossil fuel producers, committed tortious misrepresentations and concealed information about the

harms posed by their products. The first wave of climate tort lawsuits relied on federal common law to allege that interstate emissions constituted public nuisances that merited either damages or injunctive relief. These federal actions ended in a decisive defeat in 2011. In American Electric Power v. Connecticut, a unanimous U.S. Supreme Court ruled that Congress had displaced the entire field of federal common law public nuisance liability for greenhouse gas emissions when it authorized the U.S. Environmental Protection Agency (“EPA”) to regulate those pollutants under the federal Clean Air Act.4 Congress’s prior action swept aside the fragile field of federal common law for climate tort actions – even if the EPA chose never to exercise its regulatory power under the statute.

After the setback in American Electric Power, U.S. climate tort litigation has resurged anew. The substantive factual allegations and damage claims look similar to the initial federal tort actions, but the legal basis of liability has a new forum and body of law: state law and state courts. Local governments, including large cities and state governments, have now filed over 20 actions in state courts in California, Colorado, Washington, Rhode Island, Virginia, Hawaii, Ohio, and other states. These actions rely on state tort and consumer protection laws to support the claims, and none of them invoke federal common law or federal statutory authorities.5

Despite several fierce skirmishes over jurisdictional defenses and justiciability claims, some of these tort actions are poised to begin discovery and tackle substantive motions in state courts. For example, the City of Oakland’s tort action against BP, Chevron, and numerous energy corporations has survived a removal action, a dismissal by the federal district court, a reversal by the Ninth Circuit of that dismissal, and denial of an en banc rehearing by the Ninth Circuit – thereby opening the way for the case to finally return to California state courts and begin initial settings for trial.6 Similarly, many of the defendants in other state tort actions have sought to remove them to federal courts by alleging that they raise legal issues which require application of federal law, or that they necessarily will bring federal officers into the lawsuits. Essentially, the first major fights of the new wave of state tort suits have centered on where to fight, not the fight itself.

With discovery and substantive arguments looming, the U.S. Supreme Court may step in again – but in an unexpected way. On January 19, 2021, the Court heard oral arguments in BP P.L.C. v. City of Baltimore over a relatively small and obscure question of appellate law.7 When Baltimore brought its public nuisance tort action against a collection of large energy and industrial corporations, it initially sued in Maryland local courts and relied solely on Maryland tort laws for its claim. In response, the defendants have repeatedly sought to remove the action to federal courts. The federal district court initially denied the removal attempt, and it remanded the case to the Maryland courts. The defendants appealed to the Fourth Circuit, which also denied this attempt to remove the case —and hence led to their request for review to the U.S. Supreme Court.

While BP P.L.C. involves potentially titanic questions of climate liability and responsibility, the U.S. Supreme Court heard arguments on an exceedingly narrow issue of appellate jurisdiction: the scope of appellate review of a district court’s decision to deny a removal action. Normally, federal law prohibits an appellate court from reviewing a court’s denial of a removal action. But narrow statutory exceptions allow appellate review if the removal action relied on the federal officer removal statute.

The question, then, centered on what issues the appellate court could assess if defendants relied on the federal officer removal statute to seek appellate review. Could the defendants insist that the appellate court review all of their claimed bases for removal? Or should the appellate court review only the federal officer removal issue? Notably, this obscure issue has already provoked a split in the

circuit courts.

In oral arguments, the justices focused on familiar statutory interpretation doctrines.8 In particular, the petitioners highlighted the plain textual meaning of the word “order” in the federal removal statute. This word choice by Congress implied, arguably, that an appellate court could review all issues related to the “order” itself rather than simply the federal officer issue alone. Other justices focused on whether Congress had implicitly endorsed a narrow interpretation of the federal officer statute when it revised the statute without changing the language at issue. In the stilted round-robin oral argument required by COVID-19 pandemic restrictions, the questions from the justices hinted that the Court is narrowly divided.

More tellingly, the Trojan Horse got noticed. While the arguments focused on the scope of appellate review on denial of federal officer renewal, the true battle – whether the Court should also directly rule on the underlying issues on whether state tort law should govern potential liability for damages caused by global climate change – pulsed below the surface. When Justice Barrett asked counsel for the petitioners whether it would be “fairly aggressive” to decide whether the underlying climate tort claims necessarily arose under federal jurisdiction (and prevented state law suits), the petitioners’ counsel flatly said no because the issue was fully briefed and “the answer is clear” – i.e., federal law governs the issue and precludes state tort actions.9 Justice Thomas raised the same question with the solicitor general’s attorney, who replied that the United States agreed that federal common law “governed the nature of the injury” here.10

Even if the Court declines to answer the federal preemption issue via the BP P.L.C. v. City of Baltimore vehicle, these lawsuits likely will resurface in its docket unless Congress takes direct action. This opening skirmish at the Court targets narrow questions over appellate review, but future battles will quickly replace it at the Court and state supreme courts. These pending fights will likely center on more substantive issues: the preemption of state law by regulatory action (or inaction) under the federal Clean Air Act, the standing of litigants to bring tort claims in state courts where criteria may vary from federal standards, the ability of state courts to exercise jurisdiction over foreign defendants based on emissions or representations occurring in other states or nations, and many others. Even once past these threshold issues, substantive challenges would still loom over the actual mechanics of hosting such a trial, wrestling with complicated issues of causation and attribution, coordinating multiple state court actions involving similar parties, and marshalling and admissibility of expert evidence on complex climate science.

The Biden Administration’s fast start on climate action via multiple executive orders augurs a complex interplay of complementary forces affecting state climate tort actions.11 Energetic progress by the federal executive branch on climate action, ironically, may create a growing headwind against the viability of state climate tort actions. While the federal Clean Air Act includes express savings clauses to preserve the viability of additional state laws and regulations on air pollution (including some torts),12 the prospects for actual conflict or field preemption grow if EPA undertakes aggressive regulatory actions and permitting requirements for greenhouse gas emissions. Regulatory initiatives may not necessarily preclude tort liability for past actions that predated the new regime, but the breadth of federal action may make it easier for state and federal courts to find that federal law better fits the imposition of any liability for greenhouse gas emissions.

And Congress, of course, may have the last word if it passes significant climate legislation. One proposal for climate legislation by a bipartisan pro-market group advocating a carbon tax included an express statutory preemption of state tort liability as part of the overall framework for federal regulation. This suggestion sparked immediate and intense objections, and it was quickly abandoned in subsequent proposals.13 But the prospect remains on the table – especially if any of the state climate tort actions appear anywhere near actual trial or issuance of liability judgments. While the U.S. Constitution imposes relatively few limits on the power of Congress to preempt state laws, the history of statutory preemption clauses suggests that drafting these clauses is much more complex and difficult than many advocates expect.

In the end, even action by Congress or the U.S. Supreme Court will not end the climate tort liability struggle. Climate change is a global phenomenon, and other national courts will almost certainly press ahead with liability claims even if the United States declines to do so. Some foreign litigants have already begun to bring their claims in defendants’ national courts to recover damages that they suffered in their homelands. For example, in Lliuya v. RWE a Peruvian farmer has sued Germany’s largest electrical power providers in German court of appeals in Hamburg for emitting greenhouse gases that contributed to mountain glacial losses in Peru. These losses, in turn, have allegedly raised the risks for flooding and disruption near his home.14 Foreign plaintiffs in other lawsuits have pursued actions against defendants in their home jurisdictions for environmental damages that they caused abroad, although transnational climate tort actions still appear to be rare.

Alternatively, some plaintiffs may ultimately bring climate damage actions in their home courts against foreign defendants. These actions would rely on domestic laws and tort systems that may favor the plaintiffs, and these cases may yield substantial judgments. The enforcement of these foreign judgments in the defendants’ home court systems might then face less daunting barriers because most nations, including the United States, do not allow re-litigation of an underlying dispute when a successful litigant

seeks to enforce a final foreign judgment rendered abroad (as long as it meets basic standards of fairness and due process).

This outcome, of course, raises troubles of its own. Greenhouse gas emitters may face in the future conflicting liability judgments from multiple domestic and foreign court systems by overlapping plaintiffs with varying theories of liability. The prospects of an international uniform resolution of these liability claims appears remote, and the vast creativity currently used in crafting these claims may ultimately reappear in efforts to structure effective settlements and proactive claim preclusions. In the meantime, climate tort liability actions appear here to stay, and they will likely grow in stakes and complexity as climate action continues to ramp up in the United States and abroad.

Professor Tracy Hester teaches environmental law at the University of Houston Law Center. His research focuses on the innovative application of environmental laws to emerging technologies and unanticipated risks, including climate engineering; deep decarbonization (particularly in energy production); and advanced wind, solar, and other renewable power systems. Prof. Hester is currently the co-director and a co-founder of the Center for Carbon Management in Energy at the University of Houston.

endnotes

1. Janet The Sabin Center for Climate Change Law at Columbia University School of Law co-hosts a database of

U.S. and global change litigation that tracks lawsuits in all of these categories and several others (e.g., securities lawsuits and retaliation lawsuits against climate scientists). The climate litigation database is available at www. climatecasechart.com and at climate.law.columbia.edu. 2. JOANA SETZER & REBECCA BYRNES, LONDON

SCH. OF ECON. & POL. SCI., GLOBAL TRENDS IN

CLIMATE CHANGE LITIGATION: 2020 SNAPSHOT, 4 (2020), https://www.lse.ac.uk/granthaminstitute/wpcontent/uploads/2020/07/Global-trends-in-climatechange-litigation_2020-snapshot.pdf. 3. Jennifer Hijazi, Next Frontier in Climate Law: The Global

South, CLIMATEWIRE (May 13, 2020), https://www. eenews.net/climatewire/stories/1063118845/print. 4. Am. Elec. Power v. Connecticut, 564 U.S. 410 (2011). 5. Ellen Gilmer, Climate Cases Poised for Bigger Fights as

Courts Clear Hurdles, BLOOMBERG LAW (June 2, 2020, 5:01 a.m.), https://news.bloomberglaw.com/environmentand-energy/climate-cases-poised-for-bigger-fightsas-courts-clear-hurdles?context=article-related; Jennifer

Hijazi, 2020 Could Bring Dramatic Movement on Climate

Liability, CLIMATEWIRE (Dec. 23, 2019), https://www. eenews.net/climatewire/stories/1061883257/print. 6. Michael Phillis, Ninth Circuit Won’t Rethink Order Remanding California Climate Suits, LAW360 (Aug. 12, 2020, 8:54 p.m.), https://www.law360.com/articles/1300782/9thcirc-won-t-rethink-order-remanding-calif-climate-suits. 7. BP P.L.C. v. Mayor & City Council of Baltimore, No. 24-

C-18-004219, 2019 WL 7304940 (Md. Cir. Ct. Dec. 5, 2019); see Transcript, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. Jan. 19, 2021), https:// www.supremecourt.gov/docket/docketfiles/html/public/19-1189.html (last visited on Feb. 15, 2021). 8. Transcript, supra note 7. 9. Id. at 22. 10. Id. at 30–31. 11. See, e.g., Executive Order on Tackling the Climate Crisis at

Home and Abroad, WHITE HOUSE (Jan. 27, 2021), https:// www.whitehouse.gov/briefing-room/presidentialactions/2021/01/27/executive-order-on-tackling-theclimate-crisis-at-home-and-abroad/ . 12. 42 U.S.C. §§ 7604(e), 7416. 13. The bipartisan Climate Leadership Council proposed a statutory preemption of state climate tort liability as part of its comprehensive plan to implement a carbon tax.

After the proposal drew strong objections, the Council’s subsequent versions of the plan omitted the liability preemption language. Current legislative proposals by other groups either expressly preserve state law claims or leave the issue unaddressed. Dana Drugmand, New

Carbon Bills Won’t Let Oil Companies Off the Hook for Climate Costs, THE CLIMATE DOCKET (July 31, 2018), https://www.climatedocket.com/2019/07/31/carbonbills-climate-liability-waiver/. 14. Sabin Ctr. For Climate Change L., Luciano Lliuya v.

RWE AG, CLIMATE CHANGE LITIG. DATABASE, http://climatecasechart.com/non-us-case/lliuya-vrwe-ag/#:~:text=RWE%20AG,-Filing%20Date%3A%20 2015&text=Summary%3A&text=Luciano%20Lliuya’s%20suit%20alleged%20that,town%20of%20

Huaraz%2C%20population%20120%2C000 (last visited

Feb. 12, 2021).