The Unlikely Renaissance of Federal Common Law in the Second Wave of Climate Change Litigation

Abstract

Since 2017, states and municipalities have sued fossil fuel producers under state law, alleging that they continued producing, selling, and marketing fossil fuels despite knowledge of the harms that fossil fuels caused. The defendants— the world’s largest fossil fuels producers—have held up the litigation around the country by arguing plaintiffs’ claims are not what they purport to be. They argued states and municipalities are attempting to regulate global climate change, an area of a “unique federal interest,” requiring exclusive application of federal common law. Through these arguments, fossil fuel companies attempt to resurrect federal common law, which runs headlong into Supreme Court precedent and the text of the Clean Air Act. Nonetheless, the defendants have found success in some federal courts. For example, the Second Circuit in The New York City v. Chevron first reframed defendants’ state-law claims as claims concerning global greenhouse gas emissions and then erroneously applied federal common law to justify dismissal of New York City’s state-law claims. Such legal analysis erroneously interprets the Supreme Court’s precedent and intrudes on historic powers of state courts. This Article concludes that instead, courts should apply an ordinary preemption analysis under the Clean Air Act