Climate Change Litigation - Uncertainty and Jockeying will Continue in 2020 on Jurisdictional Questions

January 21, 2020
Garrett D. Trego, Esq.
MGKF Special Alert - Federal Forecast 2020

2019 saw certain landmark decisions in the realm of climate change litigation, but many essential threshold questions remain – principally, who has legal rights to challenge corporations’ or governments’ roles in climate change, and in which jurisdiction(s) may those challenges be heard?  Expected decisions in 2020 will likely move these questions forward but resolution likely remains years away. 

2019 was highlighted by some of the following key developments.

  • Exxon Mobil successfully defended the New York state attorney general’s securities fraud claims regarding disclosure of the financial risks associated with climate change. People v. Exxon Mobil Corp., 2019 N.Y. Slip Op. 51990(U), 2019 WL 6795771, at *30 (N.Y. Supr. Ct. Dec. 10, 2019) (“In sum, the [OAG] failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedure that misled any reasonable investor.”).
  • At least three groups of state and municipal governments defeated attempted removals that would have relegated their claims against corporate defendants to less favorable federal venues, where the corporate defendants would argue that federal common law and statutes preempt state law climate change claims. See Bd. of Cty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 2019 U.S. Dist. LEXIS 151578 (D. Colo. Sep. 5, 2019); Rhode Island v. Chevron Corp., 2019 U.S. Dist. LEXIS 121349 (D.R.I. July 22, 2019); Mayor of Balt. v. BP P.L.C., 388 F. Supp. 3d 538, 556 (D. Md. 2019). As explained further below, these decisions are key waypoints in an ongoing jurisdictional struggle over the proper venue for climate change cases.
  • The overall quantity of cases directly and indirectly implicating climate change vastly proliferated in 2019. As a representative example, in a class action claim against the Keurig coffee company filed in California state court, a putative class alleges that the company misrepresented the ease with which its “K-cups” could be recycled, thereby increasing the amount of methane emissions as compared to the class’s expectations.  Smith v. Keurig Green Mountain, Inc., No. RG18922722 (Cal. Super. Ct. Alameda 2018).  With so many cases like this one addressing climate change in an indirect way, the number of “climate change litigation” matters become increasingly difficult to track.

In 2020, we can expect federal circuit courts to weigh in with key decisions. Already a circuit court decision was issued in January 2020 in the regularly-reported children’s climate change litigation that began in federal court in Oregon, where a group of 21 children alleged constitutional claims against the federal government for the failure to prevent climate change. After hearing oral arguments in mid-2019, the Ninth Circuit held in January that the children lack Article III standing to pursue their claims because the federal courts are not positioned to order and oversee a sufficient remedy for their claims. Juliana v. United States, No. 18-36082, -- F.3d --, 2020 WL 254149 (9th Cir. Jan. 17, 2020). The Ninth Circuit placed the burden on the executive and legislative branches to tackle the issue. Id. at *8 (“[A]ny effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”). Similar cases that have sprouted across the country face an uphill battle to survive a district court judge’s scrutiny, after the Ninth Circuit’s decision here.

Also in the Ninth Circuit, a decision is likely in 2020 on consolidated cases from municipalities regarding the federal preemption of state common law claims related to climate change against corporations.  County of San Mateo v. Chevron Corp., et al., No. 18-15499 (9th Cir.).  In the Second Circuit, the court is likely to issue its decision on similar jurisdictional and standing issues in New York City’s case against a similar group of corporate defendants.  City of New York v. BP P.L.C., et al., No. 18-2188 (2d Cir.).  These federal circuit court cases are especially important as more states and municipalities consider litigation against private entities to recover costs or obtain assistance related to infrastructure improvements in response to climate change. 

We are not aware of any case against a government or group of corporations directly seeking damages or injunctive relief in response to climate change having been finally resolved by trial.  Courts are split over the proper jurisdiction for these claims – if any – and whether state common law climate change claims are preempted by federal law.  The threshold questions remain unresolved, and no final resolution is likely coming in 2020, as they may ultimately be destined for the U.S. Supreme Court.