The Supreme Court was scheduled to hear a potentially important climate change case at its conference last Friday: American Petroleum Institute v. Minnesota. The case did not appear in today’s list of final denials, indicating that the justices may still be considering whether to grant the case.
API v. Minnesota is one of several cases brought by state and local governments against energy companies seeking compensation for the damages caused by climate change, including the costs that state and local governments must bear to improve and adapt infrastructure to account for deal with a warmer world. Because the federal common law of interstate nuisance has been completely replaced by the Clean Air Act, almost all of these lawsuits have been filed in state courts. In an effort to argue that these cases are being avoided, the energy company defendants have tried – without success – to take these cases to federal court. Their removal arguments have been rejected in the 1st, 3rd, 4th, 6th, 8th and 9th Circuit Courts of Appeals and so far the Supreme Court has shown little interest in reviewing these decisions.
The apparent re-listing of API v. Minnesota suggests that one or more justices may think this case is worth a second look, despite the lack of a meaningful circuit split. Judge Kavanaugh has previously indicated an interest in a similar case, so perhaps he will write a dissent on the denial of certiorari, or try to convince his colleagues that this case deserves the justices’ attention.
The main question in the case is whether there are grounds to move Minnesota’s lawsuit to federal court. A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit rejected the removal argument. For reasons I explained in this post (and discuss in more detail in this article ), the Eighth Circuit was entirely correct.
Last week, former Attorney General William Barr and my friend Adam White of the American Enterprise Institute argued in the Wall Street Journal that this case “belongs in federal court, not a Ramsey County courtroom.” Their article makes some strong policy arguments for favoring federal policymaking over state climate change litigation as a means to address climate change. What is missing, however, is one legal basis for bringing these cases in federal court.
Write Barr and White:
Under the United States Code, the federal courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” When such cases are filed in state courts, they can be “moved” to the federal courts. . . .
Early on, Congress recognized the need to ensure that the federal judiciary would maintain control over interstate litigation and, ultimately, federal issues more broadly. A plaintiff may be in charge of his own case in some respects, but a defendant is entitled to the protection of federal laws, including laws that preserve a defendant’s access to federal judicial review of truly federal issues. And the people – through their elected representatives – are entitled to the constitutional process of making law. . . .
Choices about how to handle energy policy should be made through the democratic processes of the Constitution, not by federal judges or administrative fiat – and certainly not by state and local judges. The Minnesota case belongs in federal court to ensure that federal law governs Mr. Ellison’s game.
Barr and White are absolutely right when they say that all defendants, even oil companies, are “entitled to the protection of federal law.” The problem here is that there are no federal laws that strip state courts of jurisdiction to hear these types of claims, let alone federal laws that could plausibly be interpreted to preclude state causes of action against climate change. The “gamble” here is energy companies’ attempt to convince the Supreme Court that the general rules of eviction and preemption should be overridden in the context of climate change.
When the Supreme Court unanimously ruled that the federal Clean Air Act supersedes the federal common law of interstate nuisance, it expressly affirmed precedents holding that federal environmental laws do not preempt state claims against polluters, provided they are based on statute of the source state. Moreover, because the federal common law of interstate nuisance has been displaced, it also cannot preempt state law claims for interstate pollution. These are points that I make in detail in the article linked above.
Barr and White are right to say that “choices about how to handle energy policy should be made through the democratic processes of the Constitution,” but no one is suggesting otherwise. Nothing in the Minnesota lawsuit undermines the right of “the people – through their elected representatives” to enact laws governing climate change. Congress has unquestioned authority to enact laws regulating greenhouse gas emissions and addressing the threats of climate change, and there is no doubt that if Congress were to choose to preempt state lawsuits over climate change, such lawsuits would would occur. But Congress has not yet made such a choice.
In West Virginia v. United States. EPAthe Supreme Court has made clear that policy choices on “important issues,” such as how federal energy policy should address the threat of climate change (if at all), must be made by the people’s elected representatives in Congress. Even when the stakes are high, a federal agency like the EPA lacks the authority to rewrite federal laws to align with its policy vision. Unelected regulators only have the power to regulate delegated to them by Congress.
By the same principle, the economic or political importance of federal energy policy does not justify reimagining federal environmental statutes or distorting federal law to eliminate state law claims in federal court, let alone ruling that such claims be undermined, even though Congress has not determined this. . As in West Virginia v. United States. EPA, the ultimate policy choice here is a choice that must be made by the legislator. If it so decides, it may provide for the withdrawal or priority of such claims. But unless and until this is the case, federal courts must hold their hands. Six appeal courts have understood this. We’ll see if the judges do the same.