The 450 Inupiat residents of Kivalina, a small village on the frozen tundra of Alaska at the edge of the Arctic Ocean, are among the first communities in the world to lose their ability to survive because of climate change. With temperature increases that double the global average, Alaska is one of the canaries in the coal mine of climate change. As a result, the Arctic’s ice has diminished by half over the last three decades, triggering a series of reactions that are transforming the environment. The people of Kivalina risk plunging into frigid waters whenever they use their snowmobiles — the only viable motorized means of transportation in the region. That, along with the fact that their principal source of food is wildlife whose habitats are being destroyed by rising sea levels, means that the Inupiat of Kivalina are losing their ability to feed themselves.
The Kivalina villagers will eventually suffer the same fate as the wildlife they depend on: According to the U.S. Army Corps of Engineers, Kivalina will be under water within ten years. Life is challenging on frozen tundra, but in the face of climate change, it is no longer possible. And the federal government has not done anything about it. Although in 2015 President Obama did submit a proposal to Congress that would have allocated $400 million for the residents of Kivalina and other Alaskan communities to relocate, Congress never approved it. Left unprotected by their government, the villagers sued ExxonMobil, BP, Chevron, Shell, and other major greenhouse gas emitters for their contribution to climate change. The village claimed the right to monetary compensation to relocate based on the common law claim of public nuisance.
In addition to the relatively slow-moving disasters such as those destroying the lives of the Kivalina Inupiat, climate change has caused an increased frequency of devastating storms such as the recent hurricanes, discussed throughout this report, that pummeled Gulf Coast states and U.S. island territories in the Caribbean. Also as pointed out in this report, the government’s response has been woefully inadequate, particularly in Puerto Rico. In light of this, coupled with the fact that scientists are now able to attribute specific extreme weather events such as Hurricanes Harvey and Maria to anthropogenic greenhouse gas emissions, we may see individuals, communities, and the governments of those states and territories bring suits similar to the one brought by the village of Kivalina to secure some relief for themselves and their residents.
Tort law — also known as the civil justice system — has long provided a critical way for individuals to hold others accountable for causing injury and to secure redress for those injuries. Particularly since the mid-twentieth century, individuals and communities have sought compensation for harms caused by national and multinational for-profit entities whose widespread commercial activities harm the health and well-being of humans and their environment. The pathbreaking litigation seeking redress for climate change harms such as that brought by the village of Kivalina may prove to be the most important example to date of this function of the tort system at work. Importantly, it could prove to be a powerful tool for marginalized communities who are particularly vulnerable to climate change threats.
In 2007, the Intergovernmental Panel on Climate Change (IPCC) noted the likelihood of an increase in what is now often referred to as “climate change” or “climate justice” litigation. The reason for the increase, predicted the IPCC, was that “countries and citizens [will] become dissatisfied with the pace of international and national decision-making on climate change.” In addition to suits against national governments based on international and national environmental laws in various countries, the IPCC pointed to one of the first climate change tort cases brought in the United States: American Electric Power Co. v. Connecticut (AEP). In that case, a group of state attorneys general sued five major electric power companies for climate change harms caused by their greenhouse gas emissions based on the common law action of public nuisance. Although the case was eventually dismissed, more and more groups have since sued the fossil fuel industry for climate change harms based on common law causes of action. Some of those cases have a greater chance of success than that initial case because of shifting legal strategies and the continued increase in the strength of the evidence (1) supporting causal links between climate change and the greenhouse gas emissions caused by the fossil fuel industry’s manufacturing processes, and between climate change and myriad risks to life on this planet, such as sea level rise, droughts, wildfires, and hurricanes, and (2) the fossil fuel industry’s continued marketing of its products notwithstanding its decades-long knowledge of both links.
In AEP, the U.S. Supreme Court held that the federal common law claim of public nuisance brought by eight states and New York City was “displaced” by the Clean Air Act. Although longstanding, federal common law, such as the public nuisance claim in AEP, is much more limited than state common law, both in types of claims and the frequency with which they are brought. As the Court has repeatedly emphasized in the handful of public nuisance cases that it has decided, federal common law is “an unusual exercise of [the] law-making power [of] federal courts.” Federal common law is relatively rare for two reasons. First, state common law is usually more appropriate; only in exceptional cases has the Court required a federal law of decision to ensure uniformity. Second, because this need for a federal law of decision is the only reason justifying federal common law, it is appropriate only when Congress has not addressed the issue presented by the case. As the Court has noted, “[f]ederal common law is a necessary expedient” that is no longer necessary once Congress has addressed the issue. When Congress has addressed the issue, as the Court held that it had in AEP, federal common law is displaced by the federal statutory law.
Recent cases brought by California counties and cities have been consolidated into two actions: San Mateo v. Chevron and California v. BP. In both cases, the plaintiffs brought only state common law claims. And they were the first climate tort plaintiffs who have decided to file their complaints in state court. Two Colorado counties and one city, a Washington State county, and Rhode Island recently made the same litigation decision as the California plaintiffs, bringing only state tort claims for climate harms against Exxon and Suncor and filing in state court.
Further, in both San Mateo and California, the oil and gas industry defendants made two related arguments that the cases should be dismissed based on AEP. First, they claimed that the cities’ and counties’ state claims all raised matters of federal concern and thus had to be addressed as federal common law claims. With only federal laws at stake, the defendants would be entitled to remove the cases from the state courts in which they were filed to federal courts. Second, the defendants argued that the federal courts should dismiss the cases because the only proper claim — the federal law claim — was displaced by the Clean Air Act under AEP. The plaintiffs challenged the removal to federal court in both cases. The federal district judge hearing the San Mateo case agreed with the plaintiffs and sent their case back to state court. The judge hearing the California litigation, however, reached the opposite conclusion and held that the case should remain in federal court. The Ninth Circuit Court of Appeals will ultimately decide who has the law right. That decision, in turn, has significant implications for the future of climate justice tort litigation.
California v. BP is the first climate tort case in which a court has addressed the question whether federal common law should trump state law claims. Both the Supreme Court in AEP and the district judge in San Mateo held only that the federal common law claim was displaced by the Clean Air Act, leaving open the question of whether the state law claims were preempted by the act. The caselaw on the preemption of state law by federal statutory law is well-developed, but the framework for addressing the issue of whether federal common law preempts state common law is less clear. Although the Court has stated that there are issues of special federal interest that should be governed by federal common law rather than state common law, it has done so mainly with the goal of justifying the rare exercise of its authority to make and apply federal common law rather than leaving the matter to resolution by state tort law, which is appropriate in most cases. Based on this limited guidance from the Supreme Court, the California decision on the viability of the plaintiffs’ state law claims is defensible as a legal matter. As a policy matter, however, the decision that state climate tort claims are preempted by federal common law is concerning. For several reasons, it is important that, at this stage, when climate justice tort claims are at their strongest, plaintiffs be allowed to proceed under state common law.
As noted above, the California and other recent climate justice tort suits filed by local governments are based on extensive, extremely strong scientific evidence of the causal link between the companies’ marketing of fossil fuels and climate change. Additionally, the plaintiffs have evidence supporting the specific, large contributions of each particular defendant’s products to climate change. Finally, they present documentation of the defendants’ knowledge of their contribution to climate change and its devastating consequences and their response to that knowledge; namely, a concerted disinformation campaign about climate change and its connection to fossil fuel use. Although such evidence certainly would support a federal nuisance claim, state tort law is in many ways better equipped to handle claims, such as the climate justice claims brought in the California cases, that allege liability for the production and marketing of products.
Initially, state tort law is a much richer body of law than the federal common law of nuisance. The plaintiffs in the San Mateo case allege not only state nuisance claims, but also several products liability claims that are unavailable in federal common law. The ability to allege multiple claims in this way does not, of course, allow for multiple damage awards; plaintiffs can recover only once for a given injury. But it does give plaintiffs the opportunity to describe more fully — and thus voice their opposition to — conduct that they claim has unlawfully harmed them. Indeed, state courts throughout the nation, including California, developed products liability law relatively late in the history of tort law. In the 1960s, in response to new types of business activities by national companies — including mass-marketing of their products, engaging in misleading marketing strategies, and selling unsafe products with the potential to cause widespread and devastating harms — state courts drew on existing state tort law principles to develop products liability claims. Products liability claims are based on the allegation that a product, or, more often, an entire line of products, is defective and consequently caused harm. These claims often more comprehensively captured the nature of the sorts of wrongful conduct and harms that had emerged with national mass-marketing than existing state tort claims such as negligence did. In one of the seminal products liability opinions, a justice on the California Supreme Court explained the justification for the development of products liability claims:
Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices . . . .
In sum, the California justice recognized that, in an era of corporate national marketing campaigns that made representations of products essential to what consumers perceived the product to be, tort law had to be able to address harms that were caused not by isolated instances of individual actions, but rather from systematic and systemic activities of corporations. This is the sort of conduct and harms that state courts have been addressing in their tort law for decades; federal courts applying the very limited federal common law of nuisance have not.
Additionally, because state tort law is usually applicable and federal common law exceptional, state judges have significantly more expertise with common law and its development than federal judges do. Consequently, even though the recent climate justice tort claims based on the fossil fuel industry’s marketing of its products are novel in their specifics, they are the sort of claims that state courts have been addressing on a regular basis for over half a century. For both of these related reasons, contrary to the opinion of the district judge in the California climate case, state tort law is well-suited to address the cities’ and counties’ claims, and, in fact, arguably much better-suited to do so than federal common law is. Unfortunately, in that case, neither the federal common law claim nor the state common law claims will be heard unless the plaintiffs successfully appeal the removal decision. After deciding that federal courts could not decide suits based on climate change harms without encroaching on the powers of the executive and legislative branches, the California district court dismissed the case. And, unlike in AEP, there are no state claims remaining for the plaintiffs to refile in state court, as the court had already held that the state claims were preempted by federal common law.
Although comprehensive federal legislation and regulation is urgently needed to address the myriad threats presented by climate change, state tort law is urgently needed to address the myriad climate change harms exacerbated by the federal government’s inaction. This is the gap-filling role that state tort law has been serving for this country’s citizens for decades. And the California district court’s decision holding that federal common law preempts state tort law threatens to deprive citizens of this vital avenue of redress in the U.S. system at the time that they are facing the most serious threats that they, and, indeed, all the citizens of the world, have ever faced. Now more than ever, state tort law must be allowed to serve its long-standing functions that provide the American public — particularly those communities most vulnerable as a result of social inequity — with a safety net when federal protections are weak or non-existent. Those functions are redressing harms and “prodding” federal policymakers to take much-needed actions to protect those whom they serve.
Ideally, the Supreme Court should create a clear standard for preemption of state common law by federal common law that accounts for the importance of state law in the U.S. system. Given the limited nature of federal common law, this standard should be stricter than the one applied to the question of whether federal statutory law preempts state law, which requires significant deference to the states’ independent and unique role in protecting their citizens. This is why a decision that a federal statute displaces federal common law does not mean that the same statute preempts state law claims based on the same allegations. As the Supreme Court explained in AEP, unlike the decision whether a federal statute preempts state law, “[d]ue regard for the presuppositions of our embracing federal system . . . as a promoter of democracy does not enter in the calculus” when the question is whether a federal statute displaces federal common law. At the very least, the same regard for the states’ constitutional role should be factored into the decision whether federal common law preempts state law. This is particularly so when state common law claims have increasingly been used to mitigate the local consequences of corporate conduct that may have widespread impacts throughout the rest of the nation, or indeed, the world. As noted, the climate justice tort claims are not new in this regard.
As all the sections of this report make clear, the current era of climate change demands not only new and improved governmental mechanisms, but also using current ones that are effective to the fullest extent possible. Lives — particularly those of socially marginalized communities such as the Inupiat of Kivalina and the residents of U.S. territories — depend on it.
 See generally, e.g., Chilenye Nwapi, From Responsibility to Cost-Effectiveness to Litigation: The Evolution of Climate Change Regulation and the Emergence of Climate Justice Litigation, in Climate Justice: Case Studies in Global and Regional Governance Challenges 517 (Randall S. Abate, ed., 2016).