Circuit Courts Give Climate Change Litigation New Life In State Court

Read the full post at JD Supra.

For years, climate change litigation in the United States has been reduced to a series of lengthy jurisdictional battles concerning whether such litigation belongs in state or federal court. More often than not, local regulatory authorities file these actions in state court, but the defendants reflexively remove them to federal court, where they can press their federal preemption arguments and where the risk of local bias is far lower. These threshold procedural questions can take years to resolve as the cases work their way through the federal appellate process. As a result, the substance of climate change claims is rarely addressed, much less resolved one way or the other.

But in four recent decisions—BaltimoreOaklandSan Mateo, and Suncor—the U.S. Courts of Appeals for the Fourth, Ninth, and Tenth Circuits all resolved the threshold jurisdictional question in favor of keeping climate change litigation in state court, signaling that these cases could be four of the earliest state climate change actions in the United States to proceed to discovery, dispositive motions, and, eventually, a trial. 

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