Supreme Court Denies Certiorari in Climate Tort Suits

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Today the Supreme Court denied certiorari in Sunoco LP v. Honolulu and Shell PLC v. Honolulu, two petitions from oil companies seeking High Court intervention in a state-law-based climate case in Hawaii. Unlike with prior cert denials in climate tort cases, no justice indicated that he or she supported certiorari.

On the one hand, this cert denial should not be surprising because, as I have explained, the legal arguments for federal court intervention in these cases is exceedingly weak. The oil company defendants advance a preemption-by-penumbra argument that cuts against existing precedent and the broader direction of relevant doctrines. The Supreme Court has expressly held that the Clean Air Act does not preempt state-law-based tort claims for air pollution, and the federal common law of interstate nuisance (for good or ill) has been completely displaced. Thus, these suits are not preempted. There may be limits on the specific conduct that can be sanctioned and the scope of relief, but that’s not something the Supreme Court has any reason to address on the front end.

The Court had asked for the views of the Solicitor General, and the SG also recommended against cert. The Trump Administration would almost certainly have disagreed, having supported certiorari in related cases before. Today’s cert denial means that the Trump Administration will have no opportunity to express a contrasting view.

The one real argument for certiorari is that there is something of a split on the preemption question as one court — the U.S. Court of Appeals for the Second Circuit in a decision I discuss here — has accepted the preemption arguments, albeit in a different posture. I suspect this argument was not enough because the justices recognized that it would nonetheless be premature to review the Hawaii suit, and that there will be ample opportunity for judicial review should Hawaii courts (and other state courts hearing similar claims) impose judgements that exceed their proper authority or otherwise raise constitutional questions.

The Court did not take action on a related filing in which several states are seeking to invoke the Supreme Court’s original jurisdiction to prevent state-law-based climate suits filed by other state attorneys general. I think this petition is utterly meritless, but it did attract amici that would like the Court to address whether it is proper to deny a state’s bill of complaint seeking to invoke the Court’s original jurisdiction without addressing the merits. As I noted here, multiple justices oppose this common practice (and they have a point).

For more  on these questions, here are a teleforum and a panel in which I debated others on these questions.

Here are my prior posts on climate-related tort litigation:

And here is my longer paper on the subject.

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