On July 20, just one day after a federal judge dismissed a similar case brought by New York City, the mayor and city council of Baltimore sued 26 manufacturers for allegedly creating a public nuisance by producing products that contribute to climate change. As its lawsuit was filed under the shadow of three recent dismissals in almost identical suits out of New York City, San Francisco, and Oakland, many wonder why Baltimore believes its chance at success is any different.   

In dismissing New York City’s case, U.S. District Judge John Keenan wrote, “Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.”

Judge Keenan’s decision was almost a perfect echo of that made by U.S. District Court Judge William Alsup who dismissed Oakland and San Francisco’s lawsuits against the same manufacturers just weeks earlier.

In his own opinion, Judge Alsup focused on the separation of powers issue at hand in the California cities’ cases. The federal judge asserted that while the cities claimed it was production, promotion and marketing of fossil fuels that was at blame, their argument relied on fossil fuel emissions. This fact led him to cite two American Electric Power v. Connecticut and Kivalina v. ExxonMobil, in which the Supreme Court ruled that only Congress – not the courts – could regulate greenhouse gas emissions. Judge Alsup stated that this logic applied in San Francisco and Oakland’s cases as well.

Beyond this point, Judge Alsup discussed the importance of fossil fuels in the development and progress of modern society, reminding the cities that they continue to rely on fossil fuels and thereby contribute to their alleged nuisance. Additionally, the global nature of fossil fuel production and use necessitates a global solution to climate change, not one stemming from one judge in a San Francisco, New York City or Baltimore courtroom.

The City of Baltimore should take heed. With arguments similar to those made by the California cities and New York City, and precedent set in AEP, there is no indication that Baltimore stands a better chance to triumph in the courtroom.