federal common law
What Next for the Climate Tort Cases?
Cases against the oil companies are back to state court. It’s time to map out the next steps.
With the Supreme Court’s refusal to take up the issue, the lawsuits against the oil industry are heading back to state court. That’s where the plaintiffs wanted those cases from the beginning, but it’s by no means the last of the issues they will confront. The oil companies will fight a scorched earth campaign, spending …
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CONTINUE READINGDo Climate Change Cases Belong in Federal Court? The Biden Administration Weighs In.
In a very narrowly argued brief, the Administration calls for returning the cases to state court.
The Biden Administration, at the Supreme Court’s invitation, has now filed a brief giving its views about current lawsuits against oil companies. The gist of the brief is that the cases belong in state court., and that the Court should let that happen rather than stepping into the litigation. The brief is right about that, …
CONTINUE READINGThe Supreme Court’s Earliest Pollution Cases
Long before Congress, a notoriously conservative Court started taking pollution seriously.
Well over a century ago, the Supreme Court ruled that it had that power to remedy interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case. Notably, these cases came during the conservative Lochner era when the Court was hardly known for its liberalism. Quite the contrary. …
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CONTINUE READINGAppeals Court Nixes NYC Climate Lawsuit
With a clever if contrived argument, the Second Circuit tries to eliminate climate change litigation.
On Friday, the Second Circuit issued an important decision in a lawsuit against the oil industry. New York City had sued the oil companies for harms relating to climate change. The appeals court ordered the case dismissed, on the ground that any harm relating to fossil fuel is exclusively regulated by the Clean Air Act. …
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CONTINUE READINGSuing Big Oil
Which court has jurisdiction? State court or federal?
Yesterday, the Ninth Circuit ruled in favor of the plaintiffs in two climate change cases brought against the oil industry. The court ruled on a narrow but important procedural issue: whether the cases should be sent back to state court. Cities and counties should now be able to continue with the cases, in which they …
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CONTINUE READINGThe Return of Federal Common Law
Will the federal courts take over control of climate change litigation? One judge says so.
I’m traveling but wanted to get in a few quick words about Judge Alsup’s decision today in the California climate change litigation. This is a really complex issue, and I wanted to try to unpack it a bit. In general, except where a federal statute or constitutional provision is the basis for an action, legal …
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CONTINUE READINGConn. v. AEP: Never Underestimate Congressional Power to Do Damage
Dan’s and Rick’s posts very helpfully summarize the impacts of the Court’s decision today. (They were also probably written at the same time: great minds think alike). But I’m a little more pessimistic than Dan is concerning Congressional action. He suggests that the decision makes it more complex for Congress to repeal EPA jurisdiction since …
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CONTINUE READINGWaiting for Connecticut v. AEP
I like New York in June. The Supreme Court, not so much. June is when the Court finishes up its term and releases any decisions still pending. This year, that means we will soon get a ruling on Connecticut v. AEP, the public nuisance climate case, which was argued in April. Just so you can keep score at home, …
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