On Dec. 19, 2023, in an important climate change case, the U.S. Court of Appeals for the D.C. Circuit cited and quoted a law review article written by Jonathan H. Adler, the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law.
In District of Columbia v. Exxon Mobil Corporation, the D.C. Circuit was asked to review whether a consumer protection lawsuit filed by the District against multiple energy companies should be removed to federal court. The companies had argued that because the claims relate to greenhouse gas emissions, and the problem of climate change which does not respect state boundaries, the claims should be heard and federal court and preempted.
In concluding that federal environmental laws do not completely preempt climate change lawsuits raising state law claims, the court’s opinion cited and quoted from Adler’s 2022 article, “Displacement and Preemption of Climate Nuisance Claims,” published in the Journal of Law, Economics, and Policy. As Adler explained in this article, the displacement of federal common law claims relating to interstate pollution does not result in the preemption of state-law-based claims. To the contrary, Supreme Court precedent has expressly recognized that state-law-based claims arising from interstate pollution may still be heard in state courts.