In 2017, the cities of Oakland and San Francisco filed suit in California state court against BP, Shell, Chevron, ConocoPhillips, and ExxonMobil. The complaint asserted a claim of public nuisance and alleged that the energy company defendants had created or contributed to climate change by producing and promoting fossil fuel products for decades. Plaintiffs requested an abatement fund to construct infrastructure to adapt to climate harms such as sea level rise. In the short period since Oakland v. BP was filed, over a dozen cities, counties, and states have brought climate suits against energy companies in state courts. The Oakland plaintiffs have filed what this Note refers to as a “limited remedy case” that includes a single public nuisance claim and seeks abatement funding. Many other local governments have brought “expansive remedy cases” that include a number of claims and seek damages, abatement funding, and other remedies.
This Note considers these two different models of state law climate suits in the context of past and current climate litigation as well as litigation involving other widespread societal harms. It traces the development of this group of state law suits, referred to by scholars as a “second wave,” from an unsuccessful “first wave” of climate suits brought in federal court. This first wave ended when federal courts held that the Clean Air Act displaced federal common law suits for climate harms, without determining whether state common law suits were preempted. Energy company defendants have attempted to replicate these first wave outcomes by removing the second wave cases to federal courts. In a trio of cases in 2020, federal appeals courts allowed three second wave suits, including Oakland, to remain in state courts. The Supreme Court, however, recently decided one of those cases by allowing broader federal court review, potentially jeopardizing plaintiffs’ cases. The case will return to the Fourth Circuit Court of Appeals for review of the defendants’ other grounds for removal. While the Supreme Court case was pending and with the Fourth Circuit case on the horizon, local governments have continued filing climate suits as part of a broader spectrum of climate litigation.
During the same period that second wave suits have been litigated, other groups of plaintiffs have filed constitutional cases such as Juliana v. United States against governments and corporate law cases against energy companies. This Note contrasts the goals of local government plaintiffs with those of these other plaintiffs and discusses the traditional role of local governments as protectors of resident health and welfare. Additionally, it analyzes potential drawbacks of suits pursuing a number of remedies, including judicial hesitancy and difficulty of proving additional tort law elements. Finally, the Note discusses past cases that have successfully used public nuisance to address widespread environmental and public health harms from products such as lead paint and opioids. The Note argues that local governments should pursue limited remedy cases as they align with the traditional role of local governments, avoid the pitfalls of expansive remedy cases, and are modeled after successful cases that have obtained abatement funding for widespread harms.