States Protect Federalism by Dismissing Climate Change Suits

Courts are increasingly recognizing the constitutional limits of state-level climate litigation. The growing traction among state and federal courts affirms what constitutional scholars have long maintained: Climate change is a global phenomenon that falls under federal law and can’t be adjudicated through a patchwork of inconsistent and potentially conflicting state regulations.

Since the US Supreme Court’s decision not to review Sunoco LP v. City and County of Honolulu, one of dozens of cases nationwide where municipalities sued energy companies for climate change damages under state law, courts have continued to dismiss similar challenges.

While initially concerning, subsequent developments have vindicated the constitutional principles at stake, as these state courts are increasingly dismissing similar cases on solid legal grounds. The genius of the US’ federalist system lies in the mutual respect states have for each other’s sovereignty and experimental approaches to governance.

However, this system functions only when states honor each other’s boundaries and acknowledge the limits of their authority. We see this most clearly in the state-based incorporation system, in which each state respects others’ rules governing shareholder interactions with corporations. This mutual respect has enabled the growth of publicly traded corporations that power our economy today.

In recent years, we’ve witnessed the emergence of a distorted, progressive view of federalism—a destructive race to regulate, in which individual states compete to impose their regulatory will beyond their borders.

Yet, a growing body of court decisions is validating the principle that federal preemption strengthens federalism by preventing individual states from imposing their regulatory will across state lines. Recent dismissals of climate lawsuits in New Jersey, Delaware, and Maryland reveal a judicial recognition that these cases exceed the constitutional boundaries of state authority.

In February, New Jersey Superior Court Judge Douglas Hurd dismissed the state’s climate liability lawsuit against major energy companies, ruling that “fundamental principles of federalism in the United States Constitution are clear that state law cannot operate in areas of ‘uniquely federal interests.’” Hurd wrote that “only federal law can govern Plaintiffs’ interstate and international emissions claims because ‘the basic scheme of the Constitution so demands.’”

This ruling followed similar dismissals in Delaware, where Superior Court Judge Mary Johnston rejected claims based on the state’s consumer-protection law, and in Maryland, where Judge Videtta Brown dismissed Baltimore’s case, stating that “global pollution-based complaints were never intended by Congress to be handled by individual states.”

Just weeks before the New Jersey decision, Anne Arundel County Circuit Court Judge Steven Platt dismissed both Annapolis and Anne Arundel County’s climate lawsuits.

The legal foundations for federal preemption in this area are firmly established. Even in the Sunoco case, the federal government acknowledged in its brief that petitioners “may ultimately prevail” on constitutional grounds.

The late Supreme Court Justice Ruth Bader Ginsburg’s opinion in the landmark American Electric Power v. Connecticut case provides clear guidance on this matter. She emphasized that claims under the Clean Air Act must go through the Environmental Protection Agency and state regulators first, noting that expert agencies are “better equipped to do the job than federal judges.”

Among this growing judicial momentum, the Hawaii Supreme Court stands as a problematic outlier. Justice Todd Eddins, who authored a concurrence in the Honolulu case, has repeatedly demonstrated contempt for the US Supreme Court and a disregard for the Constitution.

In his concurrence to the Hawaii Supreme Court’s October 2023 decision, Eddins criticized numerous Supreme Court precedents, going so far as to conclude that “the United States Supreme Court could use a little Aloha.” When confronted with the clear directive of federal preemption in climate cases, the Hawaii court similarly ignored the fact that state law can’t operate in this area.

Another surprising potential outlier is a case brought by Puerto Rico. First filed by former Gov. Pedro Pierluisi (D), the lawsuit continues despite Gov. Jenniffer González-Colón (R) adopting a pro-business agenda. This presents an opportunity to focus on energy resource needs that Puerto Rico, with its power grid challenges, desperately needs.

Considering the recent judicial dismissals and clear legal vulnerabilities to continue the case under state law, it doesn’t appear Puerto Rico’s case has a legally viable path forward.

Looking ahead, there are compelling reasons for the Supreme Court to take up this line of cases. The growing consensus among state courts provides even stronger grounds for the justices to resolve the current circuit split, with federal courts reaching conflicting conclusions about whether state law can govern transboundary emissions. This legal uncertainty warrants Supreme Court review to establish uniform constitutional boundaries on state climate litigation.

In the meantime, most state courts across the country are acting responsibly by maintaining mutual respect for each other’s sovereignty and judiciously declining to make this constitutional problem worse.

The string of dismissals in Delaware, Maryland, and New Jersey demonstrates that our judicial system is correctly recognizing the limits of state authority in addressing inherently interstate and global issues such as climate change.

This growing consensus affirms that federalism works best when individual states respect constitutional boundaries rather than attempt to weaponize their courts to achieve policy objectives that properly belong to federal legislative and regulatory processes.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

J.W. Verret is associate professor at George Mason University Antonin Scalia Law School.

Write for Us: Author Guidelines