This week, the Supreme Court of Maryland tossed out climate change lawsuits filed by three local governments against fossil fuel companies.
And the New Jersey Legislature might want to take note.
While the case differs somewhat from the Climate Superfund Act bill still being attempted by New Jersey environmentalists and some lawmakers, the rationale for the resounding rejection of it from Maryland’s top court seems to mirror the same legal test it would face if it became law in the Garden State.
That is, they’re both likely in conflict with the federal Clean Air Act.
“It’s important to remember that anything can happen in a court of law, so we can't get too far ahead of ourselves,” NJBIA Deputy Chief Government Affairs Officer Ray Cantor cautioned. “But there are legal parallels here that are very similar.
“The Maryland Supreme Court and other courts around the country are seeing these lawsuits as a local or regional attempt to regulate an international issue. And they’re saying it goes directly against the Clean Air Act.”
SUPREME COURT SPEAKS
In Maryland, the three jurisdictions had argued that oil and gas companies were responsible for helping to cause climate change.
The lawsuits sought to recover damages based on allegations they deceived consumers and the public about the dangers associated with their fossil fuel products, and those products were tied to the emissions of a substantial amount of greenhouse gases.
But the Maryland Supreme Court, by a 6-1 vote, stated in no uncertain terms that the U.S. Supreme Court has held that cases involving the regulation of interstate pollution arise under federal law only.
"No amount of creative pleading can masquerade the fact that the local governments are attempting to utilize state law to regulate global conduct that is purportedly causing global harm," Justice Brynja Booth wrote.
NJ LEGAL HURDLES
In New Jersey, the controversial Climate Superfund Act stalled last legislative session, but supporters continue to lobby Trenton lawmakers.
The bill seeks to retroactively penalize New Jersey companies $50 billion legally providing fossil fuels that are essential to residents' survival and prosperity.
Cantor said the federal Clean Air Act would likely stand in the way of such a law, among several legal mountains to climb.
“The Clean Air Act was created by Congress for the purpose of creating a national framework for regulating air,” Cantor said. “Climate is about global atmospheric conditions and states don’t have the authority to regulate out-of-state emissions or impose a liability for whatever may be going on with the planet.”
Cantor also noted that, as a practical matter, New Jersey contributes just 1.7% of the United States’ GHG emissions and only 0.3% of worldwide emissions, according to the U.S. Energy Information Administration.
A Climate Superfund Law would face other steep legal tests in New Jersey, Cantor added, beyond running afoul of the Clean Air Act.
“The retroactive nature of the Climate Superfund Act -- penalizing businesses after the fact for activities that federal and state governments not only permitted, but affirmatively encouraged for decades as part of national energy policy – raises some pretty serious legal concerns,” Cantor said.
“We also firmly believe the bill goes against the interstate commerce clause of the U.S. Constitution. In other words, it attempts to find companies liable for the lawful extraction and refining activities that occurred outside of the state of New Jersey.
“The attempt to regulate that conduct beyond state borders would appear to go against the U.S. Commerce Clause,” Cantor said.
IN OTHER STATES
Both New York and Vermont have advanced similar Climate Superfund laws. But the federal Department of Justice filed lawsuits last May against both states seeking to invalidate their statutes and block enforcement, citing them as "lawless overreach.”
Additionally, the U.S. Chamber of Commerce and the American Petroleum Institute filed a federal lawsuit last year against the state of Vermont, the first state to enact a climate Superfund law even though the state does not produce or refine fossil fuels.
Decisions on those lawsuits are still pending.
