Yesterday Federal District Court Judge William Martinez remanded back to state court a “climate nuisance” suit by the City of Boulder and Counties of Boulder and San Miguel against Suncor and ExxonMobil. This remand, along with similar cases in California, Maryland, and Rhode Island, effectively places federal energy and environmental policy — rightfully the purview of the federal political branches – into state courts to be determined under state laws.
The political branches’ policymaking function is outside of both judicial authority and expertise. As such this is, to say the least, a curious situation, one made more troubling by the preponderance of these cases originating in rather actively progressive jurisdictions. In short, it’s little more than forum-shopping. Sometimes that pays off, sometimes it doesn’t.
The Court noted in its Order:
While there are no dispositive cases from the Supreme Court, the United States Court of Appeals for the Tenth Circuit, or other United States Courts of Appeal, United States District Court cases throughout the country are divided on whether federal courts have jurisdiction over state law claims related to climate change, such as raised in this case. Compare California v. BP p.l.c. (“CA I”), 2018 WL 1064293 (N.D. Cal. Feb. 27, 2018); City of Oakland v. BP p.l.c. (“CA II), 325 F. Supp. 3d 1017 (N.D. Cal. June 25, 2018); City of New York v. BP p.l.c., 325 F. Supp. 3d 466 (S.D.N.Y. July 19, 2018) with State of Rhode Island v. Chevron Corp., 2019 WL 3282007 (D. R.I. July 22, 2019); Mayor and City Council of Baltimore v. BP P.L.C. (“Baltimore”), 2019 WL 2436848 (D. Md. June 10, 2019), appeal docketed, No. 19-1644 (4th Cir. June 18, 2019); and Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934 (N.D. Cal. 2018), appeal docketed, No. 18-15499 (9th Cir. May 27, 2018).
The recent order by an Oklahoma judge that Johnson & Johnson pay $572 million under “public nuisance” theory has given hope to the climate tort bar. The similarities are largely atmospheric; however, substantively both do involve companies seeking to apply established law, while finding some judges less inclined to do so.
The Wall Street Journal had a solid take last week, “An Oklahoma Opioid Stickup”, here.
It’s almost as if federal judges are (with one exception) uniformly reluctant to take the policymaking job on — righty so, as it is the province of the other two branches of government — but.… In some cases, as with yesterday’s remand, the court passes the task on to a state judge.
The proper course is that followed by the others among those cases the judge listed, which is to respect the separation of powers. Playing the courts as a lottery, hoping for the big score to reverse disappointing outcomes via the political process is not an approach the courts should enable.