Federal Common Law Climate Claims: Now You See Them, Now You Don’t

Just a few weeks ago, Federal Judge William Alsup ruled that claims brought by San Francisco and Oakland against certain large oil companies belonged in federal court, because they raise issues of federal common law.  Last week, in a similar law suit asserting similar claims, Judge Vince Chhabria remanded the case to state court.  Why?  Because there is no federal common law applicable to such climate-related claims.  

Everyone agrees that the starting point of analysis must be the Supreme Court’s decision in AEP v. Connecticut.  There, the Court concluded that the federal Clean Air Act displaced the federal common law of nuisance with respect to regulation of emissions of greenhouse gases.

That was enough for Judge Chhabria.  Federal common law no longer exists.  The claims (which may or may not be preempted) are purely creatures of state law.

Judge Alsup was more creative (which does not equate to correct!).  He determined that the claims were not based on the defendants’ emissions of GHGs, but were instead based on the companies’ conduct in selling fossil fuels without disclosing their climate impacts.  Because the Clean Air Act does not regulate the sale of fossil fuels, he concluded that federal common law is alive and well.

Either way, if two federal judges a few miles apart in California can’t even agree on what law applies to these cases, that hardly bodes well for their prompt and efficient resolution.  I don’t think that these cases are going to drone on for decades, but this somehow does have a Jarndyce v. Jarndyce feel about it to me.  Maybe there can be a reality TV show.  “Bleak House, the Sequel:  California Adaptation Edition.”

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