Todd M. Thacker, partner in Goldberg Segalla’s Toxic Tort and Global Insurance Services groups, explored with Law360 the complex world of climate suits. Todd discussed how national, state, and local courts are progressing in claims against energy companies for public infrastructure damage. A key point he outlines is that federal circuit courts hold the opinion that actions against these energy companies can be taken to state level courts, resulting in a massive increase in liability claims in the energy industry.
Todd analyzed a number of circuit court cases and found that “… state governments argued that compensation of climate-related infrastructure damage, for which they bear the cost, is a parochial concern belonging in state court.” Conversely, “… energy companies argued that the federal CAA (Clean Air Act) should be the exclusive vehicle to regulate greenhouse gas emissions, and that the state law claims conflict with federal interests in what is essentially a national issue.” However, circuit courts found that federal acts such as the CAA were the “floor for such claims, rather than a ceiling.”
The U.S. Court of Appeals for the Second Circuit would be an exception. That court “found that federal common law did indeed apply in the arena of climate change tort lawsuits, noting that ‘artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.’”
The article also explored the fact that energy companies have petitioned the Supreme Court to review rulings and that the Supreme Court has disagreed with circuit courts in past cases. Circuit courts were directed to “consider all the energy companies’ bases for federal removal, not just federal officer jurisdiction.”
“Ultimately, state court resolution of climate change lawsuits could pose serious problems for any company that can be credibly accused of contributing to climate change. Such companies could face significant tort damages from juries in states with the most stringent climate change regulations,” Todd concluded.
“Circuits’ Remand of State Climate Suits May Mean Big Liability,” Law360, June 22, 2022
Todd M. Thacker is an experienced litigator who represents clients in toxic tort, asbestos litigation, insurance coverage, and business and commercial matters. The California State Bar has certified him as an appellate specialist. Todd has directed and drafted numerous appeals and writs in California, both as an appellate and a respondent. He has appeared before the First, Second, Fourth, and Fifth District Courts of Appeal in California and federally before the Ninth Circuit. Todd also devotes a portion of his time to dispositive and other complex motion practice. He has litigated corporate, insurance coverage, and contract disputes, working with public and private companies, partnerships, corporations, and individuals. His courtroom experience also includes leading the defense for clients involved in federal multi-district legislation.