Dozens of state and local governments have filed state-law tort suits in state courts around the United States collectively seeking billions of dollars in damages and other relief from major oil and nautral gas producers for the alleged local effects of global warming and climate change. The potentially disastrous ramifications of allowing these proliferating climate-change tort suits to proceed are important not only for the defendant fossil fuel energy companies, but also for the nation’s economy, critical infrastructure, and homeland security.
Case Background
A trio of climate-change tort suits has been filed in Maryland state courts by the City of Baltimore, the City of Annapolis, and Anne Arundel County. Like most of the similar suits pending across the United States, these Maryland local governments allege that the defendants have engaged in a decades-long “disinformation campaign” about the alleged impact of fossil fuels on global warming and climate change. Despite this “disinformation” veneer, Baltimore’s lengthy complaint—which reads like a climate alarmist’s manifesto against the fossil fuel industry—alleges that the defendants’ fossil fuel products have been a “substantial factor” in causing global warming and climate change. The complaints filed by Annapolis and Anne Arundel County similarly allege that the defendant fossil fuel producers are “responsible for causing and accelerating climate change.”
Both the Baltimore City and Anne Arundel County circuit courts dismissed these suits, concluding, as the defendants argued, that they are precluded by the structure of the U.S. Constitution, or alternatively, preempted by the federal Clean Air Act. Baltimore, Annapolis, and Anne Arundel County are now appealing to the Maryland Supreme Court.
The Atlantic Legal Foundation (ALF) and the Federation of Defense & Corporate Counsel (FDCC) have jointly submitted an amicus brief to the Maryland Supreme Court in support of the Defendant-Appellee fossil fuel energy companies. The brief was co-authored by ALF Executive Vice President & General Counsel Lawrence S. Ebner and Marisa A. Trasatti, Partner at Bowman and Brooke LLP in Hunt Valley, Maryland and General Counsel at Sciton, Inc.
Amicus Brief
The amicus brief submitted by ALF & FDCC makes three major points:
First, the consequences of allowing climate-change tort suits are mind boggling. If Baltimore, Annapolis, and Anne Arundel County can cash-in on the “climate crisis” by proceeding with their individual tort suits against the nation’s major oil & natural gas producers for alleged local harm attributable to global climate change, there is nothing to prevent Maryland’s other 177 local governments from doing the same.
Along the same lines, in addition to the 50 States, there are 40,000 local governments in the United States. There would be nationwide judicial chaos, as well as crippling litigation costs and burdens on the fossil fuel industry, if each and every State, or county, city, or other local government, were free to pursue its own multi-million dollar, state-court damages suit against the same group of fossil fuel producers. At the very least, there would be an enormous potential for conflicting or inconsistent findings of fact, conclusions of law, judgments, and astronomical and overlapping damages awards and other remedies against the fossil fuel producers. Further, if these suits are allowed to proceed, the next wave of opportunistic climate-change litigation could be brought by the plaintiffs’ bar on behalf of a multitude of individual, mass-action, or class-action plaintiffs.
Second, the fossil fuel producers’ alleged liabilty for global warming and climate change cannot be fragmented into a myriad of state and local pieces. Climate-change tort suits that attempt to splinter fossil fuel producers’ alleged liability for causing global climate change into countless state and/or local fragments cannot be reconciled with the scientific facts (i) that global warming due to greenhouse gas emissions, and resultant climate change, are whole-earth phenomena that have no geographic or political boundaries, and (ii) that there are a multitude of sources of carbon dioxide (CO2) and other greenhouse gas emissions (including non-oil-and-gas and non-fossil fuel sources) both in the United States and abroad.
The interstate, indeed worldwide, scope of atmospheric greenhouse gas pollution cannot be transformed into a parochial dispute merely by pointing to the damages that a local government claims it has suffered due to global climate change. Liability for the impacts of global climate change in Baltimore or any other locale cannot be attributed to any particular industry, corporation, individual, or other source of greenhouse gas emissions. Insofar as any greenhouse gas emitter can be held liable under state law for causing global climate change, then every greenhouse gas emitter must be held liable.
Third, global climate-change claims implicate uniquely federal interests that transcend state tort law and the geographic borders of any State. The U.S. Supreme Court has held that the subject of interstate pollution is a “uniquely federal interest” that precludes or preempts application of state law. The Constitution’s Supremacy Clause, U.S. Const. art. VI, cl. 2, declares that federal law (which includes the Constitution itself) displaces any conflicting state law.
Allowing climate-change tort suits to proceed also would imperil the “interstate federalism” principles embedded in the Constitution. The Constitution makes every State a co-equal sovereign. Because climate change is a nationwide, and indeed global, phenomenon, holding fossil fuel producers liable under Maryland’s or any other State’s tort law for causing or exacerbating global climate change would upset the balance of interstate federalism. Such a State (or political subdivision) would be using the State’s tort law to exert its coercive power over the same group of major fossil fuel producers—and by so doing, making itself “more equal” than other States with regard to imposing liability on those companies.