By Michael Burger

This past July, three local governments in California filed three different lawsuits in California state courts, claiming that the extraction, promotion, and sale of fossil fuels by a group of oil, gas, and coal companies constituted torts under a number of different state common law theories. (I previously discussed the lawsuits here.) In August, some of the defendants in one of the cases filed a notice of removal, seeking to transfer the case from state to federal court, arguing that the federal court has original jurisdiction. Among the seven rationales defendants offer, one is that the local governments’ claims, though styled as state common law claims, are necessarily federal common law claims. This argument is important beyond the outcome of the removal notice – if defendants are right, then similar lawsuits that seek to obtain damages from climate change impacts, whether from slow onset changes like sea level rise or extreme events like Hurricanes Harvey and Irma, would necessarily become federal cases. And if that’s right, then it is possible all of them could be dismissed out of hand, as the U.S. Supreme Court has held that the Clean Air Act has displaced federal common law suits against greenhouse gas emitters. But I don’t think it is right.

Defendants’ argument goes, in essence, like this: 1. Courts in previous climate change cases have recognized a federal common law cause of action for public nuisance. 2. Courts have also said that there cannot be a federal common law cause of action and a state common law cause of action that apply to the same matter. 3. Therefore, there is only a federal common law cause of action for the nuisance of climate change. The problem with this argument – other than the way it collapses multiple causes of action (such as failure to warn, design defect, and negligence) into the nuisance claim – is that every court that has looked at the question of the viability of state-based nuisance and tort claims for climate change has come to the opposite conclusion.

Let’s start with the Supreme Court, which in 2011 unanimously held a federal public nuisance lawsuit against five large power companies displaced by the Clean Air Act, in American Electric Power v. Connecticut. In her opinion, Justice Ginsburg noted that plaintiffs had also pled state law claims for nuisance under the laws of the various states in which emitting sources were located. Regarding the viability of those claims, Justice Ginsburg wrote: “In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act….None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.” Thus, the Supreme Court’s view is that the existence of a federal common law claim that has been displaced by federal legislation does not erase the possibility of state common law claims. Rather, it converts the availability of state claims into an as-yet-unresolved question of statutory preemption.

The Ninth Circuit, following AEP v. Connecticut, also held the Clean Air Act displaced a federal public nuisance claim, this one filed by an Alaskan Native government against a group of oil, energy and power companies, in Native Village of Kivalina v. ExxonMobil.  In regards to the state law claims that Kivalina had filed, the Ninth Circuit panel noted simply that the district court had declined to exercise supplemental jurisdiction and dismissed the claim without prejudice to re-file in state court. Below, the district court had explained its decision by noting that a federal court “may decline to exercise supplemental jurisdiction over a claim if it has dismissed all claims over which it has original jurisdiction.” In at least one judge’s view, then, a federal district court does not have original jurisdiction over a case claiming a state common law nuisance for climate change-related harms.

This view is consistent with the Fifth Circuit panel’s 2009 opinion in Comer v. Murphy Oil (Comer I) and the District Court for the Southern District of Mississippi’s decision two years later in the next Comer v. Murphy Oil (Comer II), the only other decisions to address the question of jurisdiction in this context. In Comer I, plaintiffs seeking damages for injuries suffered as a result of Hurricane Katrina had invoked federal jurisdiction based on diversity. The Fifth Circuit panel concurred, reasoning that it had original jurisdiction over a class action worth more than $5 million where diversity is present, under 28 U.S.C. Section 1332(d)(2). That the Fifth Circuit later vacated the decision is of no moment, really, as the decision to do so was based on its failure to convene a quorum for an en banc rehearing. This had the effect of reinstating the district court’s dismissal of the case on political question and standing grounds. The district court dismissed the largely identical complaint filed in Comer II on several grounds: res judicata, political question, standing, and preemption. The Fifth Circuit upheld dismissal based on res judicata. None of which supports the idea that state law claims do not exist. Instead, the Comer cases appear to validate the existence of the claims, even while doing away with them before reaching the merits.

It may be that there are grounds for removal of the California cases to federal court. I do not here intend to take up against the entirety of defendants’ notice. But it cannot be that removal rests on the idea that there is only one kind of common law action that applies to climate change-related harms, and that that is a federal one. All of the cases addressing the issue are to the contrary. If the state law claims are to fall, it will have to be on another basis than that they simply don’t exist.

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