Seeking (Some) Climate Justice in State Tort Law
62 Pages Posted: 26 Sep 2019 Last revised: 29 May 2020
Date Written: September 24, 2019
Over the last decade, an increasing number of path-breaking cases have been filed throughout the world seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the current climate crisis. This Article focuses on an important subset of those cases-namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.
The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two "waves." The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants' response to the second-wave climate tort cases; namely, that federal common law preempts all the plaintiffs' state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court caselaw is sparse and unclear. The Article identifies the doctrinal problem in the caselaw, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law. Finally, the Article offers a new perspective on why that is also the right result as a policy matter.
The second-wave climate tort suits are part of larger global movement of resorting to the courts to demand climate justice that should be given a full hearing. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones-including state tort law-to the fullest extent possible.
Keywords: climate change litigation, climate change cases, climate justice, climate torts, climate disruption, public nuisance, tort law, federal common law, climate change crisis, climate harm, products liability
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