The Ninth Circuit U.S. Court of Appeals is considering whether to hear en banc a petition involving local governments suing energy companies over climate change.
The defendants in City of San Mateo et al. v. Chevron Corp. et al argue the question needs to be adjudicated not in state courts but at the federal level with a uniform standard.
The issue arises after local governments brought suit in state court that argued the companies were responsible for climate change, after which the companies said the air pollution claims were federal jurisdiction under the Clean Air Act.
The Ninth Circuit is one of numerous federal appellate courts that have been asked to rule on the issue, and may increase the likelihood of the U.S. Supreme Court granting a petition for certiorari, Todd Thacker, a partner at Goldberg Segalla and California Certified Appellate Law Specialist, told the Northern California Record.
“The idea is to have uniformity – that would be the argument from the energy companies – that the United States should have a uniformity in regulation rather than being subject to these tort claims in one state where they’re not in another,” Thacker said. “They can argue this is a federal issue, that Congress has passed legislation regarding this.”
Thacker noted that by passing the Clean Air Act, it could be argued that Congress has demonstrated an intent to preempt this area of law.
“And therefore this is something that can only be dealt with on the federal level rather than on the state level, Thacker said. “Whether that's the case or not is something that's obviously up to debate.”
But since air pollution isn’t limited to one state, a federal standard that governs equally everywhere is what the companies have been seeking.
It wouldn’t be the only time the SCOTUS has considered a case seeking to hold companies responsible for climate change.
The Ninth Circuit in April considered the San Mateo case on remand following a SCOTUS decision on a similar case out of Maryland, in which the high court said in a 7-1 ruling that the Fourth Circuit U.S. Court of Appeals in Virginia hadn’t fully assessed whether the case belonged in federal court.
But the Ninth Circuit justices in a unanimous decision said the defendants hadn’t met statutory requirements and declined to remove it to federal court; the companies summarily filed a petition for the en banc hearing.
If granted, a panel of 10 judges would review the case.
In an amicus brief filed with the Ninth Circuit, the US Chamber Litigation Center states, “Plaintiffs’ claims regarding the harm arising from the effects of global climate change are exactly the sort of interstate and international claims that require the application of federal common law. The plaintiffs may purport to assert a localized harm, but the alleged cause of that harm is anything but local—an inherently global phenomenon that is caused by parties and activities not only in every city, county, and state in the United States, but in every country on the planet.”
In terms of giving the companies due process, having a uniform regulation of the muti-state issue could be addressed in federal court, Thacker said.
Having to adjust compliance state by state rather than under single federal standard would also increase costs for companies, adding to already record gas prices for consumers.
“If we get to the end and climate change tort damages start being levied against these companies, that's going to have some effect on the cost of energy production, which will also have some effect on gas prices,” Thacker said.
While the Ninth Circuit has not yet issued a decision on whether the San Mateo case will be heard en banc, last week a certiorari petition for a similar case, Suncor Energy v. County of Boulder, from the 10th U.S. Circuit was filed with the SCOTUS.
“This is something that is a national issue that a lot of circuits are dealing with,” Thacker said. “It's a legal issue that's being addressed not only in California in the Ninth Circuit, but by circuits throughout the country. It’s a national issue where governments are pressing these energy companies to compensate them for alleged climate damages in their municipalities or counties, and the question is where does this get resolved, in state court or federal court, and it's probably not going to be fully resolved until the Supreme Court comes down with a decision eventually.”
(Editor's note: The Northern California Record is owned by the U.S. Chamber Institute for Legal Reform).