The Supreme Court on January 19 heard oral arguments in a case (BP PLC v Mayor and City Council of Baltimore) that addresses an exceedingly narrow topic: whether or not the “federal officer jurisdiction” doctrine should direct climate lawsuits by states and municipalities against energy producers into state or federal court. Most such lawsuits attempt to claim that localized flooding and other phenomena are an effect of anthropogenic climate change driven by the use of fossil fuels, and that the energy producers are responsible for the creation of such nuisances, whether directly or through a purported historical failure to provide accurate information about the climate effects of fossil fuel consumption.
The enormous uncertainties about the climate effects of increasing atmospheric concentrations of greenhouse gases – acknowledged fully by the Intergovernmental Panel on Climate Change in its latest assessment report – have been shunted aside in the various lawsuits by the plaintiffs, who simply assert that flooding and other phenomena are the fault of the energy producers. Accordingly, the effects of fossil fuel use and the “accurate information” accusations are far more dubious than commonly asserted, a point to which I return below.
Nonetheless, the stakes are enormous. At a narrow level, the plaintiffs’ legal arguments about the liability of the energy producers are expansive, to put it mildly, and federal courts as a general proposition are less receptive to such arguments than state courts. Accordingly, two such suits were dismissed by federal district courts in 2018, but both are now under appeal by the plaintiffs.