The Supreme Court will soon decide whether to hear two cases that could dictate the future of climate change tort suits.  Such suits have proliferated in recent years: several dozen active cases assert state tort law claims—like nuisance, trespass, and strict liability—against oil and gas companies for fueling and misleading the public about climate change.  The two pending cases go to the very foundations of these claims.

On February 28, 2024, a group of oil and gas companies filed a petition for a writ of certiorari in Sunoco LP v. City & County of Honolulu (No. 23-947).  In its decision below, the Supreme Court of Hawaii rejected the companies’ argument that federal law precludes application of state tort law in the climate change context.  See City & County of Honolulu v. Sunoco LP, 537 P.3d 1173, 1181 (Haw. 2023).  In their certiorari petition, the companies—supported by ten amicus briefs, including one filed by twenty states—encourage the Court to “provide clarity on whether claims seeking relief for global climate change can proceed” before parties and the judiciary incur significant costs.  The companies allege that Honolulu created a split with the U.S. Court of Appeals for the Second Circuit, which held that federal law precluded somewhat similar claims in City of New York v. Chevron Corp., 993 F.3d 81, 85 (2d Cir. 2021).

On June 10, 2024, the Supreme Court called for the views of the Solicitor General as to whether it should hear the case, an order that often constitutes a “significant sign that there is a much higher likelihood that cert. may ultimately be granted in [a] case.”  Justice Alito recused himself without stating a reason, although his recusal likely stems from his previously disclosed holdings in one or more of Petitioner-Companies.

Separately, on May 22, 2024, nineteen states filed a motion for leave to file a bill of complaint in Alabama v. California (No. 22O158).  In their bill of complaint, Plaintiff-States ask the Supreme Court to exercise its original jurisdiction to bar a different group of states from using state laws “to regulate activity or extract liability for emissions by or wholly within Plaintiff States” or “to regulate interstate gas emissions.”  Motivating this suit, the five Defendant-States—California, Connecticut, Minnesota, New Jersey, and Rhode Island—have all filed state tort law claims against oil and gas companies, similar to the claims at issue in Honolulu.  Plaintiff-States argue that such suits “exceed state authority, flout the horizontal separation of powers, usurp federal authority over a federal issue, and violate the prohibition on extraterritorial regulation embodied in the Commerce Clause.”

Should the Supreme Court grant the Honolulu petition or the Alabama motion, it could expand or narrow a significant avenue through which states and municipalities seek to hold oil and gas companies liable for climate change.  Supreme Court decisions in these matters could also carry significance outside the climate change context, either strengthening or limiting plaintiffs’ ability to utilize state law claims to address issues with nationwide salience.

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Photo of Daniel Nathan Daniel Nathan

Daniel Nathan helps clients navigate complex questions of environmental law, as well as administrative and appellate litigation. His litigation matters have encompassed claims under numerous environmental and natural resources statutes, including the Antiquities Act; Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Clean…

Daniel Nathan helps clients navigate complex questions of environmental law, as well as administrative and appellate litigation. His litigation matters have encompassed claims under numerous environmental and natural resources statutes, including the Antiquities Act; Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Clean Air Act; and National Environmental Policy Act (NEPA).