Indiana Attorney General Curtis Hill Jr. filed a brief asking the U.S. Supreme Court to finally decide whether public nuisance laws can be used to sue power plants and other industrial polluters for their pollution.

Hill and the attorneys general of 12 other states filed the brief in support of 21 domestic and international energy companies that sued the mayor and city council of Baltimore, Maryland, to settle what scope a federal appeals court has in reviewing whether a case belongs in state or federal court.

In 2018, the city of Baltimore sued every major oil and gas company doing business in the US for their role in causing climate change and its effects and for concealing the fact that fossil fuels were a main cause of climate change.

Climate change is driven by human activity. Over the last six decades, the burning of fossil fuels has led to a global average temperature increase of about 1.4 degrees Fahrenheit and other changes in the Earth’s climate.

The city claimed that climate change caused by the companies’ actions led to Baltimore suffering climate-related injuries, including increased sea levels and an increase in natural weather events.

The city, like other state and local governments, made its claim using state public and private nuisance laws, saying the companies created a nuisance by promoting the sale and use of fossil fuels while knowing the products would “cause or exacerbate global warming and related consequences.”

The Supreme Court in October agreed to review a ruling by the Fourth Circuit Court of Appeals that allowed the case to be tried in Maryland state court.

Hill and the other attorneys general said the case involves a “claim that necessarily arises under federal common law” and should be tried in federal court.
“We all support clean energy and a healthy environment,” Hill said in a press release. “But we will not obtain these desired results by improperly using centuries-old public-nuisance laws to penalize fossil-fuel companies in an effort to hold them liable for the costs of global climate changes. That would be a simplistic and unsuccessful attempt to solve a complex challenge. It would set back our economy with no discernible benefits in exchange.”
Three separate federal appeals courts have ruled that “climate liability” cases against fossil fuel companies can proceed in federal court.

The Supreme Court’s decision could have a great impact on how much direct accountability heavy polluters in the fossil fuel industry will face for their alleged role in causing climate change.

The decision could also guide the incoming Biden administration’s environmental justice goals.

One facet of President-elect Joe Biden’s environmental justice plan includes a mandate to instruct the as-yet-unchosen U.S. Attorney General to “strategically support ongoing plaintiff-driven climate litigation against polluters.”