The Supreme Court must decide this issue on climate lawsuits someday. Why not do it now?

“​Don’t put off until tomorrow what you can do today.” 

This aphorism — attributed (perhaps spuriously) to Benjamin Franklin, Thomas Jefferson and others — provides wise counsel for the U.S. Supreme Court. That's especially true as it decides whether to grant a pending petition for certiorari asking it to decide today whether federal law preempts or otherwise precludes state common law public nuisance and similar claims seeking redress for injuries allegedly contributing to climate change effects. 

In recent years, dozens of lawsuits have been filed against energy companies and others, claiming they should be liable for alleged contributions to climate change effects. Last October, in one of these cases in the Hawaii state courts, the oil company defendants argued that federal laws such as the Clean Air Act preempt state law. This means that Congress, by legislating specifically in this area of interstate pollution, foreclosed methods of regulation by litigation in state courts.

The Hawaii Supreme Court expressly found the state claims were not preempted. In February, Sunoco, Royal Dutch Shell and other defendants in the case filed petitions for certiorari in Sunoco LP et al. v. City and County of Honolulu, asking the Supreme Court to review and settle the preemption issue.

Partly because of the court’s own prior unclear precedents, there is an inevitability that it will have to decide this issue at some point. In 2011, the court very clearly held in AEP v. Connecticut that plaintiffs could not bring federal common law public nuisance claims for alleged climate change impacts because federal common law in this area has been displaced by the Clean Air Act. 

The court left open the question of whether the Clean Air Act similarly preempts state-level climate claims in state or federal court. Both state and federal common law should be unavailable as vehicles for judicial climate policymaking, given that Congress has reserved that function for itself. The problem is that the court failed to say as much in 2011, leaving litigants still at sea.

If the court remains silent on this question, these cases will only continue to multiply.  Alternatively, if the court doesn’t want to extend its logic in the AEP case to preempt state law climate change lawsuits, it should say so, and signal to Congress that it needs to do more if it wants preemption.

Taking the Honolulu case gives the justices a chance to clear things up. They will have to do so — if not today, then someday.  It is untenable for the court to let the confusion of its own making linger forever, when the financial incentives to bring these lawsuits guarantee the cases will continue to proliferate. Cash-strapped states, counties and municipalities see climate-related damage awards as a way to solve their budgetary problems, and of course the fee-seeking plaintiffs attorneys with whom they are partnering see a chance to make bank.  

Admittedly, the wisdom surrounding whether to grant cert petitions often counsels that there should be significant “percolation” of an issue in the courts below before the Supreme Court takes on an issue. Call it a preference for “crowdsourcing” to help develop information useful for the court’s ultimate assessment. But percolation should not be a concern here. First, some percolation has already occurred. Several lower courts have already addressed the preemption issue in interstate pollution cases, with conflicting results.

Moreover, the preemption question at issue is one purely of statutory and constitutional interpretation. Waiting for more cases to decide the same pure interpretation questions will add no new information that the court cannot already evaluate on its own. For this specific preemption issue, there is no complicated or nuanced application of law to fact or other difficulties that the lower courts could help suss out in greater detail.  The Clean Air Act and the Constitution either create preemption or they do not. 

Finally, key factors in favor of granting cert are present here. The Supreme Court's Rule 10(a) identifies one of the “compelling reasons” is when “a United States court of appeals . . . has decided an important federal question in a way that conflicts with a decision by a state court of last resort.” In April 2021, the U.S. Court of Appeals for the Second Circuit dismissed a public nuisance climate lawsuit brought by the City of New York on the grounds that state law claims are preempted. The Hawaii state court of last resort expressly rejected and refused to apply the Second Circuit’s holding.

Also, Rule 10(c) lists another “compelling reason” to be when “a state court . . . has decided an important question of federal law that has not been, but should be, settled by this court, or has decided an important federal question in a way that conflicts with relevant decisions of this court.” 

No doubt, this issue of whether the federal government has authority over interstate and global pollution to the exclusion of state tort law, and whether the AEP rationale should extend to preemption of state common law public nuisance claims in the climate change context, are important issues that should be settled by the Supreme Court. 

Indeed, these preemption and meaning-of-AEP issues inescapably must one day be settled. Thus, there’s every reason to settle them now, before significant resources are wasted and energy security disturbed during a prolonged period of indeterminacy. 

Donald Kochan is a professor of law and executive director of the Law and Economics Center at George Mason University’s Antonin Scalia Law School.