In State of Rhode Island v. Chevron, the State sued over 20 energy companies in state court, seeking damages and injunctive relief, due to the alleged contribution of the energy companies to climate change.  The State’s suit is based on the doctrine of public nuisance and other claims recognized by state law.

Disagreement on the Reach of Federal Common Law
The energy companies removed the case to federal court, saying the State’s public-nuisance claim is “necessarily governed by federal common law.”  The State, claiming it had carefully drafted the suit to allege claims that are not governed by federal law and are only subject to state law, asked the federal judge to remand the case back to state court.  The federal judge in Rhode Island agreed with the State, and issued a remand order.

The issue of federal court jurisdiction is present in several cases filed against energy companies alleging climate change damages.  The judge in Rhode Island’s case recognized that different federal courts have reached different conclusions.  Judges in California and New York have agreed with the energy companies and allowed the cases to remain in federal court; recently, a federal judge in Maryland disagreed with the energy companies and remanded that case to the Maryland state court.

Appeal Expected
The Rhode Island judge agreed with the judge in Maryland and ordered the case remanded to state court.  However, recognizing the importance of the issue and the differing decisions from other courts, the judge in Rhode Island stayed the remand for at least 60 days to allow the parties to present arguments that the remand should be further stayed pending the expected appeal of the remand order to the US Court of Appeals for the 1st Circuit.

The issue of federal court jurisdiction in a similar California case is now before the US Court of Appeals for the 9th Circuit; oral argument in County of San Mateo v. Chevron will probably be held before the end of 2019.

Texas Environmental SuperConference August 1-2
I look forward to seeing many of you at the Texas Environmental SuperConference this week in Austin, Texas.  I am on Friday afternoon’s ethics panel.