While the Ninth Circuit declined last month to hear en banc a petition for review in San Mateo v. Chevron, it remains to be seen if that lawsuit – or one of the similar cases pending in other circuits – is selected for review by the U.S. Supreme Court, or if these cases seeking to hold energy companies liable for climate change get adjudicated in state court.
A Tenth Circuit case petition, Suncor Energy v. County of Boulder, has been submitted to the SCOTUS for review, Todd Thacker, a partner at Goldberg Segalla and California certified appellate law specialist, told the Northern California Record.
"The fact that a bunch of different circuits confronted this issue, and especially if the Second Circuit [in Connecticut v. Exxon] issues a ruling that’s different from the rulings in the other circuits, makes it more likely for the Supreme Court to take one of these cases up to resolve the issue nationwide."
But if the high court declines to review Suncor or another climate change case, it’s unknown how such litigation could play out.
“Either the Supreme Court is going to take it up, which would give them a nationwide standard, or the Supreme Court isn’t going to take it up, and then these cases are going to proceed in various states because the circuit court rulings will stand,” Thacker said.
If the lawsuits are going to be heard in state court, Thacker noted it doesn’t mean the plaintiffs bringing the cases are automatically going to succeed. “It depends – they still have standards of proof; they need to prove that these injuries that they’re claiming to experience are actually a result of the energy companies’ actions, and that the energy companies knew or should have known that those damages would result as a result of their actions. And that’s probably going to be a difficult hurdle for them to jump over.”
New scientific evidence presented to the court would also be governed by the Daubert Standard, Thacker said.
Still, if the cases are heard in state court, it’s one step toward it being more likely that energy companies could be held liable for damages the municipalities are claiming.
“But it’s certainly not the final step,” Thacker said. “I doubt it would have any effect right off the bat, but it’s going to be something where the governmental entities are going to have a better shot in state court than they would at the federal court level.”
Whether or not the plaintiffs can make a sufficient showing in state court that the energy companies are responsible remains open to debate, Thacker said.