CLIMATE CHANGE, THE FEDERAL COMMON LAW AFTER ERIE, AND CASE REMOVAL STRATEGY

A pending Supreme Court case about a federal removal statute also raises a federal common law question.[1] This issue implicates Erie, with which every lawyer and law student is familiar.[2] The “Erie Doctrine” permeates Civil Procedure textbooks and has forever changed civil litigation.[3] 

Erie eliminated federal general common law, mostly.[4] “Federal common law” is law made by federal courts.[5] Yet, the Supreme Court continues to leave the door open.[6] There are “uniquely federal interests” that may call for the creation of federal common law.[7] These “uniquely federal interests” include “interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations…”[8] Today, climate change implicates this more than any other global and interstate issue. 

Though not the main issue on certiorari, the parties in BP P.L.C. v. Mayor and City Council of Balt., No. 19-1189 (U.S. filed January 19, 2021)[9] briefed a federal common law climate change issue before the Supreme Court.[10]  The Court is unlikely to extend the federal common law in this case. At oral argument, Justice Barrett said, “Don’t you think it would be fairly aggressive for us to resolve the federal common law question here […]?”[11]

Creating federal common law in environmental suits remains an interesting and important issue. 

Creating federal common law in climate change matters may allow defendants in all climate change suits to remove the action to federal court under 28 U.S.C. § 1441(a). Section 1441(a) allows defendants to remove a suit from state to federal court as long as a federal court would have had original jurisdiction.[12] One way to establish original jurisdiction is by satisfying federal question jurisdiction pursuant to 28 U.S.C. § 1331. Federal climate change common law would qualify as a federal question.[13] This could be the case even if the plaintiff brought only state law claims because some Supreme Court precedent has recognized the supremacy of environmental federal common law.[14]

Removal is a highly defense-friendly strategy because federal courts are far more likely to dispel a case at the dismissal or summary judgment stage of litigation.[15]

Climate Change as a “Uniquely Federal Interest” 

Ninety-seven percent of scientists agree that “climate-warming trends over the past century are extremely likely due to human activities.”[16] In the U.S. alone, there will be, for example, more heat waves, dramatic changes in precipitation patterns, and a rise in sea level.[17] The rest of the world will experience similar effects, along with an increase in severe weather events.[18]

A great deal federal laws address environmental issues.[19] For example, the Clean Air Act may be the most comprehensive.[20] The Act regulates all sources of air emissions.[21] Despite this incredible number of federal laws regulating conduct affecting the environment, state climate change laws are almost certainly not per se preempted by federal law.[22]

Even without preemption, the creation of federal climate change common law may provide original jurisdiction for federal courts to hear all climate change lawsuits.[23]

Would Federal Climate Change Common Law be a Good Idea?

As evidenced by Justice Barrett’s comment at oral argument intimated, the Roberts’ Court is highly unlikely to expand federal common law.[24] 

In BP P.L.C. v. Mayor and City Council of Balt., the twenty-one defendants are foreign and domestic business entities who make or sell fossil fuels all over the world.[25] Subjecting them to lawsuits all over the country with potentially conflicting orders would create an impossible business model. Hypothetically, a less environmentally conscious state court could allow a business entity to proceed with operations during a lawsuit while a very pro-environment state court could issue a temporary restraining order or injunction to stop these companies from operating during a lawsuit.[26] Not only would this damage the individual businesses and their employees, the national and global economies are not ready for the crippling of the fossil fuel industry.[27]

Federal courts are far less likely to issue a temporary restraining order on foreign defendants,[28] which would decrease this economic risk. A compulsory right to removal for defendants in climate change lawsuits may become an economic necessity.[29]

On the other hand, the imminent devasting effects of climate change may significantly outweigh the economic effects of conflicting state court orders. This economic parade of horribles has yet to happen.

Footnotes

[1] See BP P.L.C. v. Mayor and City Council of Balt., No. 19-1189 (U.S. filed January 19, 2021).

[2] See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding that state substantive law shall be applied in a federal diversity case, not federal common law). 

[3] See, e.g., William H.J. Hubbard, An Empirical Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts, 10 J.L. Econ. & Pol’y 151, 152 (2013) (noting the effect of Erie and the cases that followed it on forum shopping). 

[4] Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“There is no federal general common law.”). 

[5] Caleb Nelson, The Legitimacy of (Some) Federal Common Law, 101 Va. L. Rev. 1, 3-5 (2015). After Erie, generally, the federal legislature creates federal law, and state courts and state legislatures create state law. Id.

[6] See U.S. v. Standard Oil Co, 332 U.S. 301 (1947) (acknowledging that the federal judiciary has power to act on federal matters when Congress has not). 

[7] Tex. Indus., Inc. v. Radcliffe Materials, Inc., 451 U.S. 630, 640 (1981). 

[8] Id. at 641. 

[9] BP and other corporate defendants were sued in Maryland state court under state common law environmental torts, and defendants attempted to remove the lawsuit to federal court. The appeal deals with the interpretation of a federal removal statute. 

 “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” 

28 U.S.C. § 1447(d) (West 2011).

[10] Brief of Petitioner-Appellant at 38-45, BP P.L.C. v. Mayor and City Council of Balt., No. 19-1189 (U.S. Nov. 16, 2020); Brief of Respondent-Appellee at 44-46, BP P.L.C. v. Mayor and City Council of Balt., No. 19-1189 (U.S. Dec. 16, 2020). 

[11] Transcript of Oral Argument at 22, BP P.L.C. v. Mayor and City Council of Balt., (2021) (No. 19-1189). 

[12] See 28 U.S.C. § 1441 (West 2003). 

[13] See Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850 (1985) (holding that federal common law satisfies the federal question requirements of 28 U.S.C. § 1331). 

[14] Ill. v. City of Milwaukee, 406 U.S. 91, 108 n.9 (1972) (acknowledging the utility and supremacy of federal common law “as a basis for dealing in uniform standard” of environmental law). See also International Paper Co. v. Oullette, 479 U.S. 481, 488 (1987) (“the regulation of interstate water pollution is a matter of federal, not state, law.”).  

[15] See Alison Frankel, Stunning drop in federal plaintiffs' win rate is complete mystery – new study, Reuters (2017), https://www.reuters.com/article/us-otc-mystery/stunning-drop-in-federal-plaintiffs-win-rate-is-complete-mystery-new-study-idUSKBN19J2MB (last visited Mar 20, 2021); see also Paula Hannford-Agor, Scott Graves, & Shelley Spacek Miller, The Landscape of Civil Litigation in State Courts, Civil Justice Initiative, https://www.ncsc.org/__data/assets/pdf_file/0020/13376/civiljusticereport-2015.pdf.

[16] Scientific Consensus: Earth's Climate is Warming, NASA (2021), https://climate.nasa.gov/scientific-consensus/ (last visited Mar 20, 2021).

[17] The Effects of Climate Change, NASA (2021), https://climate.nasa.gov/scientific-consensus/ (last visited Mar 20, 2021).

[18] Mapped: How climate change affects extreme weather around the world, Carbon Brief (2021), https://www.carbonbrief.org/mapped-how-climate-change-affects-extreme-weather-around-the-world (last visited Mar 20, 2021).

[19] Climate change laws in the USA, Climate Home News (2019), https://www.climatechangenews.com/2013/02/12/in-focus-usas-climate-laws/ (last visited Mar 20, 2021) (noting, for example, the Clean Air Act, the Energy Policy Act, the Energy Independence and Security Act, the American Recovery and Reinvestment Act, the Clean Power Plan, the Methane and Waste Prevention Regulation, Executive Order 13423, Executive Order 13514).

[20] 42 U.S.C. §§ 7401-7431, 7470-7479, 7491, 7492, 7501-7505, 7505a, 7506a, 7505-7509, 7509a, 7511, 7511a-7511f, 7512a, 7513, 7513a, 7513b, 7514, 7514a, 7515, 7521-7525, 741-7550, 7552-7554, 7571-7574, 7581-7590, 7601-7612, 7614-7617, 7619-7622, 7624, 7625, 7625-1, 7625am 7626-7628, 7641, 7642, 7651, 7651a-76510, 7661, 7661a-7661f, 7671, 7671a-7671q.

[21] See id. 

[22] Kristin McCarthy, An American (State) in Paris: The Constitutionality of the U.S. States’ Commitments to the Paris Agreement, 48 Envtl. L. Rep. News & Analysis 10977, 10983 (2018). Even the most comprehensive federal climate change laws do not have express preemption provisions. Id.Likewise, “the United States is a Party to the UNFCCC,” which is a treaty that says developed countries shall pursue environmental “goals in a flexible manner.” Id.

[23] See supra notes 11-13. 

[24] Transcript of Oral Argument at 22, BP P.L.C. v. Mayor and City Council of Balt., (2021) (No. 19-1189).

[25] Brief of Petitioner-Appellant at 2, BP P.L.C. v. Mayor and City Council of Balt., No. 19-1189 (U.S. Nov. 16, 2020). 

[26] Climate Change in the Courts: Jurisdiction and Common Law Litigation, Lewis & Clark College, https://law.lclark.edu/live/files/13427-chapter-17--climate-in-the-courtspdf.

[27] See Samantha Gross, Why are fossil fuels so hard to quit? Brookings (2021), https://www.brookings.edu/essay/why-are-fossil-fuels-so-hard-to-quit/ (last visited Mar 20, 2021).

[28] Requirements for a Preliminary Injunction in Federal Court, Bona Law PC, https://www.businessjustice.com/requirements-for-a-preliminary-injunction-in-federal-court.html (last visited Mar 20, 2021).

[29] See Gross, supra note 26.