"United States: U.S. Climate Change Litigation Update: The Supreme Court Greenlights State Court Adjudication Of Climate Claims", 30 May 2023

Since 2017, a laundry list of state and local governments have sued energy companies in state court seeking damages and other relief to remedy the effects of global climate change. These climate change lawsuits allege that energy companies have caused global climate change by emitting greenhouse gasses through the extraction and production of fossil fuels, and further by failing to disclose the harmful effects of these activities.

Years into climate change litigation, the merits of these claims have largely not yet been litigated. Instead, the battlelines have been drawn around forum questions—namely, in what court do climate claims belong: state or federal?

The U.S. Supreme Court has now declined to hear a group of petitions asking the Court to reverse the remand of climate change lawsuits to state court. The immediate effect of these certiorari denials is that plaintiffs' climate claims will now proceed on the merits in their respective state courts.

From the beginning, plaintiffs, perceiving strategic benefits to litigating in state court, have exclusively pleaded nominally state-law claims sounding in tort, fraud, public nuisance, and consumer protection, and argued that state courts offer the proper forum. The energy company defendants, on the other hand, have sought to remove these claims to federal courts by chiefly arguing that, while climate claims may appear as state-law claims, they are inherently federal in nature and implicate important federal interests, including the global climate, international relations, and strategic oil reserves...

So far, six federal circuit courts... have considered the question have held that state-law climate claims cannot be removed to federal court...

[T]he Supreme Court denied certiorari on five pending climate petitions on April 24, 2023. Without any written remarks, it is difficult to discern why the Justices stayed out of the fray... On May 15, 2023, the Supreme Court denied the two last certiorari petitions... that remained pending before the Court...

Plaintiffs' climate change lawsuits seek to extract billions in damages and abatement funds from energy companies. Unless the Court changes course in a future petition, the Court's recent certiorari denials now pave the way for climate claims to proceed in state courts—and possibly before state juries—around the country...