Forum Versus Substance
Should Climate Damages Cases Be Heard in State or Federal Court?

Climate change affects communities in calamitous ways: rising seas; increased storm severity, frequency and duration; disruption of the hydrologic cycle (such as extreme heat, extreme precipitation, extreme drought, wildfire, or flooding); public health effects; and other dire impacts on people, property, and public infrastructure. The costs of adapting to and mitigating these climate-related impacts are immense. Since 2017, public agencies including cities, counties, and one state have filed thirteen lawsuits against fossil fuel companies seeking climate change-related damages.

Plaintiffs allege that defendants have long known that profligate use of their products would cause catastrophic injuries to communities, including the plaintiffs. Yet they embarked on a decades-long campaign to hide the connection between fossil fuels and the climate crisis, attack science (and scientists), and influence the public and decisionmakers to avoid limits on their products’ sales.

Plaintiffs filed 12 of the 13 cases in state courts; all 13 assert solely state law claims. Defendants removed the cases to federal court. Two federal district courts found that the cases are inherently federal but that federal law provides no remedy and granted defendants’ motions to dismiss.

Four other courts held that the cases contain no inherent federal issues, were improperly removed, and should proceed under state law in state courts.

The Fourth Circuit recently affirmed an order of remand, while the First, Second, Ninth, and Tenth Circuits have appeals before them of all the remaining decisions, with rulings expected later this year. Meanwhile, following denials of requests for stays pending appeal in the First, Fourth, and Tenth Circuits and the U.S. Supreme Court, state courts in Rhode Island, Maryland, and Colorado are managing preliminary motion and discovery practice in the remanded cases.

This Essay examines the relationship between the questions of federal court removal jurisdiction and the substance of plaintiffs’ claims.

To read the full paper, with footnotes excluded here, please visit Stanford Law Review online.

Written by Vic Sher