After a key Supreme Court jurisdictional decision reached earlier this year, action around climate litigation seems to be increasing as many cases are set to take place in state courts across the country. Where these cases play out could have a significant impact upon how they are ultimately decided.

Federal courts have time and again dismissed such cases, ruling that climate change is a policy concern that is global in nature and more appropriate for Congress or other international bodies to address, not the courts. Previous lawsuits brought in federal court by San Francisco and Oakland, for example, claiming that multiple oil and gas producers were responsible for climate change related damages and seeking billions of dollars in relief, were thrown out in 2018 by Judge William Alsup in what the New York Times called a “stinging defeat.” In his decision, Judge Alsup wrote that “the court will stay its hand in favor of solutions by the legislative and executive branches.”

Plaintiffs argue that state courts are more responsive to the local issues of climate change and thus are a better place to hear these cases, but these recent federal court defeats could also be a major factor that spurred this recent push for state court jurisdiction. Localities such as Baltimore, Connecticut, Delaware, Rhode Island, Honolulu, and now California—the second biggest oil and gas consumer in the nation—have filed lawsuits alleging public deceit around climate change and public nuisance. In these cases and others, plaintiffs likely believe they can secure a more positive outcome from a judicial pool of state appointed and elected judges that are more likely to find courts have jurisdiction over matters of climate policy.

With national, and perhaps international, climate and energy policy at stake, it is important we get these proceedings right. But defendants have expressed concerns about areas of bias that they believe have been evidenced by several judges overseeing these cases in state court and are concerned that their cases might not be heard by neutral and impartial arbiters. Such accusations are concerning and warrant further examination.

A June motion filed by defendants in the Rhode Island case, for example, asked State Superior Court Judge William Carnes to “clarify and strike” parts of a jurisdictional discovery order that recited as fact articles that were never presented as evidence and other things that they believe should have been questions of liability in the case.

After reading Associated Press articles that were not entered into evidence, Judge Carnes wrote, “small countries in other parts of world, like Kenya, Tanzania, and the Seychelles, presented that oil companies have benefitted billions [sic] in corporate profits at the expense of their climate-related disasters that have caused severe destruction.” He further stated, “Rhode Island, the smallest state in the country, is similarly situated to these small countries.” The judge’s order also went on to recite as fact several issues about climate change.

Rule 2.9(c) of the Rhode Island Code of Judicial Conduct says, “a judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that may properly be judicially noticed.”

Judge Carnes responded to the allegations of bias, issuing a short order stating that he will “not accept as true” the viewpoints from the previously cited news articles. “The Court will base any findings in this matter on evidence once it is properly presented in this proceeding," Carnes wrote. This is a welcome development, but watchers of this case are sure to keep a keen eye on whether or not any other concerns regarding potential bias emerge.

In Hawaii, meanwhile, calls have grown for the Chief Justice of the Hawaii Supreme Court, Mark Recktenwald, to recuse himself from Honolulu’s climate lawsuit. A recent disclosure from the Chief Justice has revealed his connections to the Environmental Law Institute and its Climate Judiciary Project, which hosts symposiums and publishes climate-related legal educational literature for judges. Legal observers have raised concerns about potential conflicts of interest.

Justice Recktenwald has lectured for ELI on topics such as, “Rising Seas and Litigation: What Judges Need To Know About Warming-Driven Sea Level Rise,” and “Judiciary and the Environmental Rule of Law: Adjudicating Our Future.” But reporting from Politico indicates that when Recktenwald invited both parties in the lawsuit to raise concerns about his plans to speak at a seminar organized by the institute, neither side objected, which plaintiffs argue undercuts the argument that the case is stacked in their favor. Accusations of bias have not entered trial deliberations, but it will certainly be something to continue monitoring as things develop.

Besides the concerns about judicial bias in particular cases, there is a broader question of which jurisdiction can handle legal questions about climate issues most efficiently and impartially. The federal judiciary can provide uniform, clear outcomes, and federal judges have been highly scrutinized before being seated. But litigating these consequential policy questions in state courts will result in multiple and varied outcomes under different state laws, rendered by judges who have not been subject to the same level of scrutiny as their federal counterparts.

 

Ultimately, any policy related to climate change would be best decided by Congress as part of a deliberative process in consultation with key stakeholders, including the energy producers that are being sued. But since it appears that these cases will be proceeding in state court for the foreseeable future, it is imperative that they are heard by unbiased judges using fair processes.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.