Will the Supreme Court Offer Further Guidance on Federal Courts’ Climate Change Jurisdiction in 2023?
A variety of plaintiffs, including states and municipalities, are increasingly targeting energy companies with common law lawsuits seeking damages associated with responding to climate change. Plaintiffs generally seek to avoid federal jurisdiction by limiting their claims to purely state common law claims, like negligence and nuisance. The defendants, on the other hand, generally assert that climate change issues are inherently federal—if not global—and thus belong in federal court, if in any domestic jurisdiction at all.
The Supreme Court has not yet ruled on the merits of this jurisdictional issue, but that may change in 2023. In 2011, the Supreme Court held that plaintiffs had no federal common law nuisance claims against energy companies based on climate change. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011). And in 2021, the Supreme Court held that federal circuit courts had jurisdiction to consider the parties’ removal/remand arguments in these types of cases, but it declined to address the merits and remanded the case to the Fourth Circuit. BP P.L.C. v. Baltimore, 593 U.S. ___, 141 S. Ct. 1532 (2021). In 2022, certiorari petitions were filed in cases involving state common law nuisance claims, originated by state or municipal governments in Colorado, Maryland, and Hawaii, and the Supreme Court may be poised to take up the merits of the ultimate jurisdictional issue for state common law climate change claims.
In an interesting twist, on October 3, 2022, the Supreme Court invited the Solicitor General to file a brief on behalf of the Biden Administration “expressing the views of the United States” on this jurisdictional issue. Suncor Energy (U.S.A.) Inc. v. Boulder, 143 S. Ct. 78 (2022). This request may hint at the Court’s intention to revisit the issue. The Court’s current makeup suggests that it may strongly consider overturning the current decisions from the Fourth and Tenth Circuit Courts in support of remanding the cases for the state courts’ adjudication of the state common law climate change claims.