Walter Olson
On July 10, Baltimore City Circuit Court Judge Videtta A. Brown dismissed a lawsuit by the City of Baltimore seeking damages from 25 oil companies over climate change. The ruling is the latest setback for a long campaign by activist lawyers, foundations, and donors who’ve hoped to use the courts to achieve regulatory objectives that they’ve been unable to win in the federal government’s elected branches, along with financial redistribution on a truly massive scale.
Suits of this sort are simply not a matter for state courts, ruled Brown, who was appointed to the Maryland bench by former Democratic governor Martin O’Malley. Congress is the ultimate authority on national policy, and while such enactments as the Clean Air Act preserve some scope for state regulation of local emissions, “global pollution-based complaints were never intended by Congress to be handled by individual states.” In particular, “under the Constitution’s structure, matters that involve interstate controversies cannot be handled in state court under state law.”
Interstate controversies in turn are just the start, since most fossil fuel use goes on outside the United States. “Only federal law can govern claims based on foreign emissions, and foreign policy concerns foreclose any state law remedy.”
Lawyers representing the City of Baltimore had sought to keep their claims going by assembling a grab bag of Maryland state-law theories, including misrepresentation, consumer fraud, trespass, and others, but the judge made clear these would also fail even aside from the preemption issue. “The Defendants’ products have not been deemed dangerous in and of themselves. Fossil fuels are a lawful consumer product guided and regulated by the EPA.” A supposed “duty to warn” of otherwise legal and justified carbon emissions proved too much, since if taken seriously such a duty would have to “be extended to every single human being on the planet whose use of fossil fuel products may have contributed to global climate change, ultimately affecting Baltimore and its residents.” And all the artful pleading could not disguise that the object was to accomplish the goal of regulation through litigation without admitting it, “simply a way to get in the back door what they cannot get in the front door.”
As I wrote last month, the Supreme Court will soon decide whether to grant certiorari to Sunoco LP v. City and County of Honolulu, in which the Hawaii Supreme Court came out on the opposite side of Judge Brown’s Maryland court on many of these questions. In the meantime, let’s hope the new Maryland ruling helps to curb the continual attempts to use creative public recoupment lawyering to generate liability from thin air plus indignation in areas like guns, vaping, and online speech.