Earlier this week, the opening brief in a climate change action was filed in the Supreme Court. Although the issue before the Supreme Court is a technical one concerning the scope of appellate review for orders remanding cases to state court, the fossil fuel company defendants have effectively asked the Supreme Court to weigh in on whether climate change litigation may only be brought under federal law in federal court.
If climate change litigation may only be brought in federal court--widely considered to be a more favorable venue than state courts for fossil fuel producers--then the current wave of climate change litigation based on public nuisance law and similar claims will encounter an additional significant hurdle.
Even if the Supreme Court does not reach the issue of whether only federal court is the proper venue for such claims, the reasoning in the decision--and any concurrences or dissents--may provide useful indications for how the Supreme Court will address such issues in the future.
This case is certainly one to watch going forward.
Lawyers for BP Plc, Exxon Mobil Corp., and other companies are waging a highly technical dispute against the city of Baltimore at the Supreme Court, involving the scope of appellate review for certain scuffles over state-versus-federal court venue. But in an effort to fast-track the resolution of bigger issues, they’re also calling on the high court to rule that legal claims related to interstate emissions arise exclusively under federal law. . . . Such a ruling from the Supreme Court would disrupt more than a dozen other cases in which state and local governments have raised climate-related claims under state common law.
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