By Andrew R. Varcoe, a Partner with Boyden Gray & Associates, PLLC, in Washington, DC.
In 2017, several local governments in the United States filed common-law tort lawsuits against some of the world’s largest privately held energy companies, asserting that those companies should pay the local governments’ costs of responding to climate change. The lawsuits seek billions of dollars in abatement funds or damages. As one might expect, the lawsuits face many practical obstacles to success.
This summer, the local-government plaintiffs encountered some major setbacks. In separate decisions, two U.S. district judges issued decisions dismissing three suits brought by Oakland, San Francisco (and San Francisco County), and New York City.
These judicial decisions are only chapters in a larger story. The cities have already appealed the decisions to the U.S. Courts of Appeals for the Second and Ninth Circuits. Nonetheless, the two U.S. District Court decisions are a reminder that federal courts will very closely scrutinize plaintiffs’ use of civil litigation as an alternative to executive or legislative action on the global problem of climate change.
In short, courts are likely to continue to reject the claims asserted in the new mini-wave of climate lawsuits. That is not just because the lawsuits fit uneasily with existing legal doctrine. It is also because the lawsuits, if allowed to progress, would require courts to decide complex and sensitive policy questions with global ramifications—questions that political actors, including foreign governments and international organizations, are better suited to contemplate and resolve.
If this story seems familiar, that’s because it is: In American Electric Power Co., v. Connecticut, 560 U.S. 410 (2011) (AEP), the U.S. Supreme Court held that the Clean Air Act (CAA) displaced a public-nuisance action under federal common law against several utilities for abatement of greenhouse gases. The plaintiffs in the new lawsuits have worked hard to escape the Court’s holding in AEP. In the end, it is unlikely that the governments will succeed, but it may take the U.S. court system some time to sort the issues out.
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