In an article by Casey J. Snyder, Associate at Reed Smith, published by the American Bar Association, we highlighted key U.S. climate litigation trends from 2015-2020. This timeframe showed a general increase in overall climate litigation and an emphasis in state courts to advance novel climate litigation theories, among other trends. New litigation in the United States involving climate change issues through 2021 appears, so far, to be on a pace similar to that observed over the past few years, according to recent climate change case data in the Sabin Center for Climate Change Law’s Database for 2021. Since 2015, climate change litigation has raised or implicated an array of legal issues including federal and state constitutional issues, numerous tort theories including nuisance and trespass, state securities and consumer protection laws, administrative challenges, and economic issues related to climate adaptation, tourism, and historic preservation, among other issues. As theories of liability and climate science evolve, and as precedent is set, new theories are likely to develop in the coming years.
Since 2020, there have been several noteworthy updates.
- In Juliana et al. v. United States, 947 F.3d 1159 (9th Cir. 2020), the Ninth Circuit on February 20, 201 declined to rehear a public trust climate lawsuit in federal court which sought to establish a nationwide remedial plan to address climate change as well as to recognize a right to a stable climate under the Due Process Clause of the Fifth Amendment. The plaintiffs filed an amended complaint in March of 2021 and the case is continuing.
- On April 1, 2021, in a climate tort case filed in federal court by the City of New York, the Second Circuit affirmed the lower court’s holding that federal common law preempted New York state tort law under which the City’s claims were brought. City of New York v. Chevron Corp., 993 F.3d 81 (2nd Cir. 2021). Of the dozens of similar climate tort cases filed by states and municipalities, this was the only case filed originally in federal court—other cases had been filed in state court and subsequently removed to federal court, so arguments in these cases have largely raised procedural issues related to jurisdiction.
- Related to jurisdiction of these climate tort cases, on May 17, 2021, the Supreme Court in BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532 (2021) addressed a circuit split on a procedural question and held that the Fourth Circuit erred in only reviewing the grounds of BP’s federal officer removal argument, and not all the grounds for removal that the district court rejected. The parties are now briefing the Fourth Circuit on the remaining removal grounds after remand by the Supreme Court.
- Most recently, Vermont joined other governmental entities and filed a climate change lawsuit under the state’s consumer protection law, alleging several companies’ marketing of gasoline and other fossil fuel products in the state was deceptive and misleading with respect to those products’ effects on the climate. Vermont v. Exxon Mobil Corporation et al. (Vt. Super. Ct. 2021) (complaint filed September 14, 2021).
With more questions than answers on the significance of current U.S. climate change lawsuits, companies should closely track these lawsuits to anticipate and respond to the pending outcomes of these cases, including understanding the effect of climate lawsuits outside the courtroom. For example, climate change liability disclosures in financial filings may be implicated by existing or pending climate litigation, and companies may consider refining marketing or promotion techniques based on outcomes of lawsuits alleging state consumer protection or securities claims. A strong internal environmental, social, and governance (“ESG”) initiative, especially with a focus on environmental and governance aspects in these climate lawsuits, could enable a company to timely react to these issues and manage potential future liability.
Reed Smith is actively tracking climate change litigation in the U.S. and abroad as well as the rapid development of ESG initiatives, including the interrelation between the two issues. Please contact our EHS team with any questions you may have.