Climate change is an exceptional phenomenon — exceptional above all in the urgency of the solutions it demands. One might favor, therefore, the courts stretching current jurisdictional doctrines to hear climate cases and bending constitutional and statutory rules as needed. Fossil fuel companies acknowledge that climate change is exceptional, but they think the solution is exactly the opposite. They want the courts to stretch existing law to make it much easier for the courts to get rid of these cases without deciding them on the merits. And now, the U.S. Supreme Court might give this strategy a major boost.
Like a number of other states and cities, the city of Honolulu has sued Exxon, Chevron and other massive fossil fuel companies, arguing that they bear some of the financial responsibility the city will incur in addressing the harms from climate change. Honolulu initially sued in state court under state law, and the Hawaii Supreme Court affirmed that the case could go forward. But the fossil fuel defendants are now asking the U.S. Supreme Court to step in and rule that this and other climate damage-related cases can be heard only under federal law. The Supreme Court recently asked the United States solicitor general its views on the matter, which suggests the Supreme Court is seriously considering taking this case up in its next term starting in October.
This case illustrates the oil industry’s strategy of climate exceptionalism. Unless federal law “preempts” state law, each state may regulate conduct within its borders. Fossil fuel companies have offered exceptionalist arguments for why state law here should be preempted by federal law. They argue, for example, that the global effects of climate change mean that even local conduct by oil companies in Hawaii must be the subject of federal law. Indeed, they even suggest that state law should be preempted by the absence of federal law.
A Supreme Court decision that these cases cannot proceed under state law would be contrary to existing law — it would be exceptional. This exceptional decision would have the effect of robbing states of jurisdiction not only over climate cases, but also over a range of other tort and products liability cases that future defendants would analogize to these suits. And it would run contrary to the spirit of the federal Clean Air Act, in which Congress explicitly allowed for state law tort suits involving air pollution.
It is also important to note why the oil companies want their cases to be governed by federal law. It is not some principled commitment to the power of the national government. In many other areas, fossil fuel companies and their allies have strongly resisted federal environmental policy. Instead, the reason they want federal law to apply is so that they can get into federal court, and they think that the federal courts, stocked with Trump appointees, will give them a better result than state courts, in which judges are often elected by the people.
Those friendly federal judges also can employ allegedly procedural doctrines to dismiss these cases before deciding whether the plaintiffs have good claims on the merits, what one of us has referred to as “catch and kill jurisdiction.” In catch and kill jurisdiction, a federal court expands its jurisdiction to catch a case properly in state court and then kills the case based on some procedural rule that would not have applied in state court. That means there will be no decision by the judge about what the law requires and no opportunity for the case to get to a jury — like a jury in Montana that recently ruled against the oil companies.
This is why the fossil fuel companies want these cases in federal court. They are not interested in plaintiffs having their day in court or in fighting these cases on the merits. They want these cases to end, quickly and quietly. Of course, not every plaintiff in every climate case should win. But courts should not twist our law to kill these cases just because that would benefit fossil fuel defendants.
True, climate change is an exceptional problem. But that is no reason for the fossil fuel industry to be accorded exceptionally favorable treatment by the Supreme Court.
Zachary D. Clopton and David A. Dana are professors at Northwestern University Pritzker School of Law.
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