June 10, 2018

Climate Nuisance Litigation and “Uniformity”



One of the defendants’ primary arguments in the pending climate nuisance cases is that courts should not apply state law to their conduct because of an alleged need for “uniformity.” According to the oil industry, applying different states’ tort law would upset the need for “uniformity” in addressing climate change.

Last week, the Niskanen Center submitted an amicus brief in New York City’s climate nuisance case on this issue. The brief pointed out that the oil industry relies on cases that do not support its argument, because these cases deal only with defendants being sued for emissions of pollution.

For emitters, applying more than one state’s laws could, in fact, result in multiple and potentially conflicting emissions standards governing which pollutants, and in what quantities and concentrations, may be emitted. In contrast, the oil industry defendants in the nuisance cases are producers, and it does not matter how many states’ laws apply to them: they face only the simple choice of whether, when producing their products, to internalize the costs of climate injuries or to foist them onto the public. There is no matrix of emission standards applicable to selling a gallon of gasoline that could possibly result from subjecting oil companies to common law damages from multiple states. As a result, there is no basis for their argument that federal law must apply in order to avoid being forced to comply with a multiplicity of state standards.

The oral argument on the defendants’ pending motions to dismiss is June 13, and we look forward to seeing how the Judge Keenan resolves this issue.