Nearing The End Of The Line For State And Local Climate Litigation?

Late last month, Chief Judge Brenda Sannes, of the Northern District of New York, ruled that New York State’s “climate superfund” law is preempted by federal law. Relying on the 2nd Circuit opinion from 2021 in City of New York v. Chevron Corp., Chief Judge Sannes found in West Virginia v. James that the Clean Air Act displaced federal common law, and held that the Clean Air Act did not authorize “the type of state-law claims the Climate Act codifies.” 

Following the decision, there was significant discussion in the trade press whether future proceedings in West Virginia v. James will wait on the upcoming oral argument before the Supreme Court in Suncor Energy (USA) Inc. v. County Commissioners of Boulder County. That may be so, but it doesn’t mean that West Virginia v. James isn’t important. Chief Judge Sannes was an Obama appointee. And while Judge Sannes clearly felt constrained by the 2nd Circuit opinion on City of New York v. Chevron, there is nothing in her opinion suggesting that she disagreed with the 2nd Circuit. Her conclusion is worth repeating: 

The Court recognizes facial challenges are “disfavored,” and that they are accordingly—and intentionally—“hard to win.” But the Climate Act is an unusual and sweeping statute, designed to address the effects of climate change—a “uniquely international problem of national concern.” City of New York makes clear that the Climate Act operates in an area where federal law has governed for “over a century,” in “a mostly unbroken string of cases[.]”In seeking damages “for the cumulative impact” of conduct that has occurred “simultaneously across just about every jurisdiction on the planet[,]” the Climate Act conflicts with “‘the overriding . . . need for a uniform rule of decision’ on matters influencing national energy and environmental policy, and . . . ‘basic interests of federalism.’” The Clean Air Act does not “authorize” the Climate Act. Finally, any cost recovery demand against a foreign producer would be preempted by the foreign affairs doctrine. Thus, the Court finds that the Climate Act is “simply beyond the limits of state law.” As the Second Circuit remarked,“it is not as if federal law is oblivious to the harms” that the Climate Act seeks to address. Rather, it is precisely because the Climate Act operates within an area of law “in which the federal interest is so dominant” that it cannot be enforced. (Emphasis added.) 

Given how outcome-focused this Supreme Court has shown itself to be, it’s difficult to imagine a different outcome in Suncor Energy than Judge Sannes has given us in West Virginia v. James.