ALF & DRI Argue That Climate-Change Damages Suits Belong in Federal, Not State, Courts

Bolstered by climate-change activists and the plaintiffs’ contingency-fee bar, more than two dozen state and local governments around the nation have filed state-court suits seeking damages from fossil fuel energy companies for allegedly causing, or contributing to, global climate change through greenhouse gas (“GHG”) emissions.  Masquerading as state-law nuisance and trespass suits, they seek “climate justice” in the form of exorbitant damages awards from the energy companies for the cost of mitigating and remediating the alleged local effects of global warming. The energy company defendants, which are among a multitude of far flung GHG sources around the world, contend that these suits are removable to federal district court because they necessarily involve uniquely federal interests, and thus arise under federal common law.

In Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder CountyNo. 21-1550, three Colorado local governments are suing two fossil fuel energy companies for their alleged substantial contributions to causing global climate change. After the Tenth Circuit joined other circuits in ruling that the suit is not removable to federal court, the energy companies filed a certiorari petition seeking Supreme Court review of the removal issue.

The Atlantic Legal Foundation, joined by the DRI Center for Law and Public Policy, has filed an amicus brief urging the Supreme Court to grant certiorari in the Suncor Energy case and address the removal issue. The amicus brief was authored by Capital Appellate Advocacy founder and ALF Executive Vice President & General Counsel Lawrence Ebner, who also serves as Vice Chair of co-amicus DRI Center for Law and Public Policy.

The amicus brief argues that federal courts are the proper forum for adjudicating damages suits alleging “alteration of the climate.” Because  climate change is a borderless, global phenomenon,  liability for this alleged tort of nationwide and worldwide dimensions cannot be divided into potentially tens of thousands of local bits and pieces of liability, each subject to the vagaries of one of 50 States’ differing tort law standards.  Nor can the planetary scope of the energy companies’ alleged tortious conduct for alteration of the climate be converted into a parochial dispute merely by pointing to the damages that a local government (or a State) claims that it is owed for the impact of climate change. Claims for altering the climate unavoidably implicate uniquely federal interests that require a uniform federal rule of decision. Such claims arise under federal common law, and thus, no matter how labeled or artfully drafted, they are removable to federal district court under 28 U.S.C. § 1441(a).

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