In the first appellate decision to decide the issue since the Supreme Court decision in BP P.L.C. v. Mayor & City Council of Baltimore, the 10th Circuit ruled this week that climate damage claims brought by several Colorado counties should nonetheless still be heard in state court.  The most important issue in the case was whether the Clean Air “completely preempted” state law claims.  The Court held that it did not. 

I remain skeptical that the Court is as apolitical as justices of all political stripes would have us believe, but I certainly think that the 10th Circuit got it right and I would both hope and expect SCOTUS to agree.  This is my favorite part of the decision – and one that GOP-appointed justices who believe in federalism should be able to get behind:

The Energy Companies argue the Municipalities “aim to achieve through state tort law what they could not achieve in the federal legislative and regulatory process—namely, a determination that [the Energy Companies’] activities are unreasonable.” But this is simply a description of our federalist system, not a reason to override state sovereignty.

The big take-away from this decision is its link to West Virginia v. EPA, on the SCOTUS docket for this term.  As I noted late last month, the Edison Electric Institute filed an amicus in that case in support of EPA’s authority to regulate greenhouse gases under the Clean Air Act.  If SCOTUS finds that the CAA does not provide such authority, then it would certainly soon be argued that federal common law actions have been revived by the absence of CAA authority.  And that would raise questions about state common law.  And then we would come full circle and we could have another round of procedural litigation, rather than getting to the merits of these types of claims.

As to whether there are any merits to these claims, I remain of the view I expressed a few years ago.  They seem like dead-cert losers and – much like tobacco cases and same-sex marriage litigation – they will continue to seem like losers until, all of a sudden, they are not.

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