Climate litigation hit another setback as the Maryland Supreme Court recently dismissed three climate tort suits. Suits of this nature are typically brought against fossil fuel companies by states and municipalities looking to recover for the effects of climate change. The defendants’ primary argument is that energy and pollution control policy is set at the federal level, and that climate tort cases are a proxy for policy decisions. They argue that because energy and pollution policy are managed at the federal level, the cases are preempted by federal law. The Maryland Supreme Court agreed with this argument, stating in its Opinion:
“We determine that state common law has never applied to the conduct alleged by the local governments. We determine that the local governments, through their various state law claims, are seeking to regulate air emissions beyond their jurisdictional boundaries. For over a century, the United States Supreme Court has held that cases involving regulation of interstate pollution arise under federal law. Under the United States Supreme Court’s jurisprudence, we conclude that any state law claims are displaced by federal common law.”
Climate cases have been working through the legal system for years, with the Supreme Court set to weigh in on the issue this summer. Some state supreme courts, like Colorado’s, have ruled in the opposite direction, allowing litigation to continue. SCOTUS’s highly anticipated decision will resolve this question at the federal level, one way or the other. Even if the Court determines such cases are preempted, plaintiffs have been advancing creative pleadings that may provide alternative forms of relief. Additionally, new climate attribution science is increasingly able to pinpoint the specific harms caused by specific emissions. These advancements in scientific evidence may allow plaintiffs to plead narrower cases that would not be barred by federal preemption.
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