With Supreme Court petitions and a youth climate trial on the horizon, 2023 could be a blockbuster year for climate issues in the courtroom.
Five new petitions were filed in 2022 urging the Supreme Court to take another look at oil company pleas for federal jurisdiction over climate misinformation cases brought by states and municipalities. And New Jersey district court will field the first new oil majors climate case in over a year.
The potentially renewed battles at the Supreme Court could be the main event for climate litigation in 2023, should justices decide to pick up the cases.
The petitions “reflect these large greenhouse gas emitters hoping that a politicized and antiregulatory conservative six-justice majority will take the case and agree,” Georgetown law professor William Buzbee said.
Meanwhile, young people from Montana could be the first youth plaintiffs to see their constitutional climate case go to trial in June. That comes as 21 plaintiffs in the national climate case Juliana v. U.S. await word on whether their amended complaint can proceed.
“It’ll be another exciting year for climate litigation in 2023,” Lewis & Clark Law School professor Lisa Benjamin said in an email.
Cities, states, and counties looking to pin climate deception claims on major energy companies will face another round of Supreme Court moves in 2023.
Oil and gas companies are urging justices yet again to weigh in on climate liability questions, which still carry the potential to derail the cases’ progress in lower courts.
Company attorneys filed four petitions in 2022, challenging decisions in lawsuits from Colorado, Baltimore, Maryland, and Hawaii. Justices will decide next year whether to take up the cases.
The Biden administration is on the hook in 2023, after the Supreme Court asked the solicitor general to provide briefing on Boulder, Colo.'s, case before issuing a decision on the petition.
That request “puts the federal government in an awkward position,” Benjamin noted.
“Even though this administration has managed to pass historic legislation to address the climate crisis, it doesn’t necessarily mean the government would be enthusiastic about climate cases being decided in state courts,” she said.
The state of New Jersey also filed a new consumer protection suit in October, breaking a yearlong hiatus in new climate liability cases.
Oil companies knew for years that fossil fuel infrastructure was exacerbating climate impacts that have devastated the state of New Jersey, according to the complaint brought by Attorney General Matthew J. Platkin.
That case will proceed with a briefing at the U.S. District Court for the District of New Jersey, after companies removed the case to federal court in November.
Youth Climate Cases
US District Court for the District of Oregon Judge Ann Aiken heard arguments in October over whether 21 youth plaintiffs in Juliana v. U.S. can resurrect their constitutional climate lawsuit with an amended complaint.
The original complaint—which accuses the federal government of infringing constitutional rights by actively facilitating fossil fuel development—was dismissed by an appellate panel in 2020. The new complaint seeks a court order that says youth have a constitutional right to a safe climate.
On the state level, 16 youth plaintiffs from Montana will head to trial with their constitutional case.
Our Children’s Trust, the legal nonprofit behind the cases, calls the Montana case the “first children’s climate trial in U.S. history.” The trial will begin on June 12, 2023, at the First Judicial District Court in Helena, Mont.
The fallout from West Virginia v. EPA will continue to affect agency plans to address emissions, as courts continue to field arguments testing the limits of what constitutes “major questions” beyond the scope of executive authority.
The Environmental Protection Agency is expected to release major air rules in the coming months, including reconsidered particulate matter and ozone limits, additional heavy-duty truck emission plans, and greenhouse gas rules for power plants—all of which will likely end up being challenged.
Grappling with this “newly embraced and strengthened antiregulatory doctrine” in the courts could make or break future emissions limits, Buzbee said.
“Due to the many new challenges and issues raised by both climate change and clean energy shifts, how the Court uses and further clarifies the major questions doctrine could prove hugely important to climate progress or, possibly, broad judicial derailing of national climate and clean energy efforts,” he told Bloomberg Law.