States Backing Climate Case Cite Litigation Over VW, Opioids

Jan. 3, 2020, 5:02 PM

Several states are pushing back on the fossil fuel industry’s contention that climate change litigation belongs in federal court, pointing to opioid lawsuits and other nationwide issues that have been litigated at the state level.

Massachusetts, California, and 11 other states made the arguments in a Jan. 2 brief supporting Rhode Island in its lawsuit seeking to hold Royal Dutch Shell Plc and other energy companies accountable for their role in greenhouse gas emissions.

“It is well-settled that such suits do not present federal issues warranting application of federal common law—even if important federal interests are raised, and even if a product is sold or causes injury in many states,” the states argued.

Rhode Island filed its case in state court in 2018, accusing fossil fuel producers of violating state-level public nuisance and product liability law, among other claims. The lawsuit is one of more than a dozen from state and local governments raising similar arguments against the industry.

While local proceedings move forward, the U.S. Court of Appeals for the First Circuit is weighing whether the Rhode Island litigation belongs in federal court, where industry lawyers think they’ll face better odds.

Climate Change ‘Felt Locally’

The states backing Rhode Island argued that they “often play a vital role in addressing concerns in their states with national implications.”

They noted that courts have refused to force opioids lawsuits from New Mexico and other states and local governments into federal jurisdiction.

“Just like with the opioid crisis, the consequences of climate change often are felt locally, and state and local governments play a critical role in crafting and implementing solutions,” the states’ brief said.

The filing also noted that state courts in California heard legal challenges related to Volkswagen AG emissions cheating, despite the global nature of the scandal.

Other states on the brief are Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, Vermont, and Washington. All have Democratic attorneys general.

Environmentalists, scientists, members of Congress, former government officials, and others have also filed briefs siding with Rhode Island in the debate over state or federal jurisdiction. The fossil fuel industry has attracted support from the U.S. Chamber of Commerce.

The Fourth Circuit and Tenth Circuit are considering similar jurisdictional battles over climate cases from Baltimore and Boulder, Colo.

The case is Rhode Island v. Shell Oil Prod. Co., 1st Cir., No. 19-1818, brief filed 1/2/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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