Supreme Court Should Prevent Flood of State Climate Change Torts

Climate change litigation is again hotly pressing on the US Supreme Court docket. Within the next month, the court is expected to rule whether it will accept for review an October 2023 decision from the Hawaii Supreme Court determining that state courts could be, in essence, regulators of global climate change.

The case is less about climate change than it is about the separation of powers and proper division of authority between the federal and state governments. The Supreme Court should grant the petitions for certiorari and address the challenges raised.

The petitions for certiorari in Sunoco LP v. City and County of Honolulu and Shell PLC v. City and County of Honolulu were filed by the defendants in February, and the city and county of Honolulu plaintiffs submitted their reply asking the Supreme Court not to hear the case on May 1.

The petitions raise critical questions of constitutional authority—and do so against the backdrop of the heated controversies of climate change being used by the plaintiffs and some courts to claim that crises justify circumventing normal boundaries of constitutional law.

In the underlying Honolulu case from which both petitions emerge, the Hawaii Supreme Court upheld a ruling that oil companies can be sued in Hawaii state courts for their alleged contributions to global climate change under novel theories of “public nuisance” and expansions of “consumer deception” legal liability. This is one of a flurry of lawsuits that have been filed against energy companies and others in the past several years, claiming they should be liable for alleged contributions to climate change effects.

The Hawaii Supreme Court rejected a motion to dismiss where defendants argued that federal law displaces or preempts these kinds of lawsuits because a patchwork of state laws shouldn’t be allowed to govern global issues that are already addressed under federal law. The defendants had further argued that issues such as energy policy and sensitive decisions about geopolitical issues of climate change are exclusively within the purview of Congress and federal policymaking authorities.

The February petitions by the losing defendants in the case present questions over whether federal law preempts state-law claims seeking redress for injuries allegedly caused by global climate change.

If the Supreme Court doesn’t intervene to grant the petition, it will be open season for similar lawsuits in city and county courtrooms in every state across the US. If the law allows that, then the Supreme Court should grant the petition and say so.

If it doesn’t—which seems more likely under our constitutional design—the Supreme Court should grant the petition to stop the onslaught in state courts before it begins.

The framers created a system in which fundamental issues of public policy are committed to the deliberative and elected branches of government—legislatures and executives. They also created a unique system of federalism where the states retained substantial authority, but where critical issues of national or global concern were handled at the national level.

In one of the decisions reaching legal conclusions opposite those of the Hawaii Supreme Court—creating the kind of split that justifies Supreme Court intervention—the US Court of Appeals for the Second Circuit in April 2021 evaluated the merits of a lawsuit brought by the City of New York that raised claims almost identical to those brought by Honolulu.

In rejecting the availability of state tort law in the climate change context, the Second Circuit explained: “Global warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law.” Furthermore, “judicial caution and foreign policy concerns counsel against permitting such claims to proceed under federal common law absent congressional direction. And since no such permission exists, each of the City’s claims is barred and its complaint must be dismissed.”

Its conclusion flowed from the Supreme Court’s 2011 decision in AEP v. Connecticut holding that federal common law is unavailable as a litigation device in this context because it has been properly displaced by the Clean Air Act.

While the AEP court didn’t address whether the Clean Air Act also preempted state law, that conclusion is a logical extension of its reasoning. Granting the petition in the Honolulu case would be an excellent vehicle to confirm that extension.

Besides the Second Circuit, other courts have recently applied the AEP rationale to the new wave of climate change cases in direct conflict with the Hawaii Supreme Court, including a Delaware trial court in January.

And the Supreme Court explained in 1987 in International Paper Co. v. Ouellette that control of interstate pollution is exclusively a federal matter, especially once Congress has spoken to the issue and made complex policy decisions on how to regulate or not regulate by balancing competing concerns. The court in Ouellette stated that it would be extraordinary for Congress to leave open a way for state courts or legislatures through their common law or statutes to undermine that federal balancing and priority setting in our federal interstate pollution statutes.

The Supreme Court has a chance to protect the constitutional limits of the courts by explaining that neither state nor federal courts may invent state or federal law to engage in climate change policymaking. It also can clarify that federalism requires that some issues be available for Congress to claim as exclusively federal—lest a chaotic mix of state approaches risks interfering with an effective, unified process to solve the climate problems the plaintiffs seek to abate.

The cases are Sunoco LP v. City and County of Honolulu, Hawaii, U.S., No. 23-947 and Shell PLC v. City and County of Honolulu, Hawaii, U.S., No. 23-952.

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

Donald J. Kochan is professor of law and executive director of the Law and Economics Center at George Mason University Antonin Scalia Law School.

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