Recent Supreme Court Decision Will Not End Climate-Change Tort Litigation

A district court dismissed the complaints as presenting non-justiciable political questions. But the Second Circuit Court of Appeals reversed, holding that the complaints did not present political questions; that the plaintiffs had standing; and that they had stated a claim under federal common law.

The U.S. Supreme Court granted review based on three questions presented:

• Whether the plaintiffs had standing.
• Whether a cause of action could be implied under federal common law when the Clean Air Act spoke to the same subject matter and assigned regulatory responsibility to the Environmental Protection Agency.
• Whether the claims constituted non-justiciable political questions.

While the court was unanimous that the Clean Air Act displaced any federal common-law right to seek abatement, the court split equally four votes to four (Justice Sotomayor recused herself from this case) as to both the standing and the political-question doctrine. As a result of this tie, the Court of Appeals' decision on this pair of questions was affirmed.

Justice Ginsburg, who wrote the opinion for the court, devoted only a single paragraph to these two questions. She explained that four justices would hold that none of the plaintiffs had Article III standing, while the other four justices would uphold Article III standing and find no bar to adjudication under the political-question doctrine.

Although this paragraph of the opinion does not have precedential effect, it signals that five justices of the court (when Sotomayor is included) are unlikely to rule in the future that federal courts lack jurisdictional authority to adjudicate global-warming tort claims.

A major obstacle to climate-change tort litigation may thus have been removed, as previously all such suits in the federal courts had been rejected—at least at the district-court level—based either on the political-question doctrine or for lack of standing.

The court's decision also clearly distinguished the displacement of federal common law from the preemption of state common law. According to the court, displacement of federal common law results wherever a federal statute "speaks directly to the question at issue," and "does not require the same sort of evidence of a clear and manifest congressional purpose demanded for preemption of state law."

The opinion includes a single-paragraph discussion of the plaintiffs' state law claims. The court declined to address the availability of a claim under state nuisance law because the issue had not been briefed by the parties or addressed by the Second Circuit, and left the matter open for consideration on remand. 

Final conclusion? The Supreme Court's decision in American Electric Power will not end climate-change tort litigation. The end result of the decision appears to be:

• That challenges to the justiciability of such suits in the federal courts (whether articulated in terms of standing or the political-question doctrine) are unlikely to succeed before the U.S. Supreme Court, at least barring a significant shift to the right in the composition of the court.
• That such suits will be governed by state rather than federal law, apparently meaning the law of the source state where the pollution originated.

Had the Supreme Court determined that federal common law governed tort claims based on greenhouse-gas emissions, a single decision by the Supreme Court could have terminated the entire field of litigation.

But with state law governing the claims, a simple judicial resolution is far less likely, and litigation on the subject could continue for decades. Another option, of course, is for Congress to intervene by expressly preempting state law.

For the moment, however, that prospect seems unlikely, and any federal legislation addressing climate change would almost certainly require very difficult political compromises.