Member Article

For most of the last decade, creative plaintiffs attorneys and their clients — states, municipalities and environmental groups — have pushed novel, untested tort theories designed to hold energy companies, and sometimes, those same state and municipal interests, liable for climate change.

Plaintiffs have concentrated their efforts in West Coast forums. But New York and Baltimore saw some action too. Florida, by and large, has avoided the fray.

No longer. In 2018, a self-described group of "young Floridians" filed the first significant climate change case in the state, suing a bevy of state officials for "unconstitutional contributions to climate change and creation and operation of a fossil fuel-based energy system." Though that case — Reynolds v. Florida[1] — is still winding its way through Florida's judicial system, expect more like it in the coming years.

Indeed, Reynolds is likely just the first front in a wave of coming climate change litigation facing Florida municipalities, businesses and investors. This article examines recent climate change litigation trends, assesses Reynolds and considers what might come next.

The National Climate Change Litigation Landscape

Thus far, climate change cases come in four flavors:

• Municipalities suing companies under tort theories;
• Shareholders and states suing companies under commercial litigation theories;
• Environmentalists suing local, state and federal agencies under constitutional theories; and
• Businesses suing regulators.
  
  

The first three classes of cases rest on similar foundations: Plaintiffs stretch state common, commercial and constitutional law as far as they can. The fourth kind of case turns the tables: Regulated entities sue state and local governments imposing possibly illegal, discriminatory or heavy-handed climate change regulatory decisions on businesses.

Start with tort cases. In these cases, state and local governments sue private companies — usually energy companies — under state common law tort theories. For example, in a case the author of this article worked on at the district court level on the defense side, City of Imperial Beach v. Chevron Corp.,[2] decided by the U.S. Court of Appeals for the Ninth Circuit last year, a group of California municipalities sued a clutch of energy producers under public nuisance, trespass, negligence, failure to warn and strict liability theories.

How? By arguing that, for instance, energy companies created a public nuisance — e.g., sea level rise — failed to warn about the effects of climate change, defectively designed fossil fuel products and trespassed through sea level rise.

The commercial litigation cases are similarly inventive. In those complaints, shareholders — and sometimes state attorneys general — sue businesses under fraud and deception theories, arguing that the defendants misled public and private investors about climate change risk, assessment and mitigation. New York v. Exxon Mobil Corp.,[3] decided by the New York Supreme Court in 2018, typifies this theory: New York sued Exxon, alleging that the company deceived investors about its climate change risk assessment and management calculus, violating state securities laws.

These cases often include state consumer protection claims — that is, claims rooted in analogs to the Florida Deceptive and Unfair Trade Practices Act. And sometimes, these cases take the form of class action or shareholder derivative suits alleging breach of fiduciary duty, breach of contract or federal securities claims.

Although energy companies are typical targets, creative plaintiffs attorneys around the world are pushing the boundaries. In Australia, for instance, pension funds, banks and other financial services companies have faced cases alleging failure to disclose or consider climate change investment risks.

Plaintiffs also sometimes allege unorthodox constitutional theories against federal and state governments and elected officials. These cases often argue that state officials are violating the fundamental rights of the plaintiffs — commonly children or young adults — including the right to a stable climate or clean environment. Juliana v. U.S.,[4] dismissed by the Ninth Circuit last year, is the seminal case here. The Juliana plaintiffs sued federal officials under due process, Fifth Amendment, Ninth Amendment and public trust doctrine theories.

The last category of cases flips the parties' positions: Businesses sue regulators for denying permits or blocking business activity under the auspices of climate change mitigation. Lighthouse Resources Inc. v. Inslee,[5] which was decided by the U.S. District Court for the Western District of Washington in 2008 — and which the author also participated in, this time on the plaintiff's side — is one such case.

There, a railroad and coalition of mining companies and energy exporters sued Washington state officials under dormant commerce clause and federal preemption theories, arguing that the state's actions in blocking a proposed energy export terminal impermissibly interfered with international and interstate commerce. Other cases have successfully challenged similar state actions under breach of contract, due process and related theories.

Climate Change Litigation in Florida

Despite this robust national and international docket of climate change suits, Florida is a fairly new forum for these cases. Last year saw the first major decision in a Florida climate change case, Reynolds v. Florida.

Reynolds follows the Juliana model. Indeed, the same interest group, Our Children's Trust, is behind both Juliana and Reynolds.

In Reynolds, a group of young Floridians sued a clutch of Florida state agencies and officials, including the governor's office, the Florida Department of Environmental Protection and the Florida Public Service Commission, seeking, among other things, an order commanding state officials to "prepare and implement an enforceable comprehensive statewide remedial plan … to phase out fossil fuel use and draw down excess atmospheric CO2 … to stabilize the climate system."

The Reynolds plaintiffs alleged two novel claims: (1) a "breach of mandatory fiduciary duty to protect Florida's public trust resources," and (2) a violation of substantive due process under the Florida Constitution.

In June 2020, a Leon County Circuit Court judge dismissed the case with prejudice. Following several similar judicial decisions — including the Ninth Circuit's decision dismissing Juliana — Judge Kevin Carroll determined that the Reynolds plaintiffs presented "inherently political questions that must be resolved by the political branches of government," invoking the political question and separation of powers doctrines.

That decision is now on appeal to the First District Court of Appeals, with a decision expected sometime this year.

The Future of Climate Change Litigation in Florida and Beyond

Reynolds is probably just the tip of the iceberg. While Reynolds might foreclose — or, conversely, energize — more Juliana-style constitutional cases, don't be surprised to see some Florida cities and counties file their own Imperial Beach-like tort cases. Likewise, Florida might experience its own wave of public and private investor-driven securities and commercial litigation cases.

Thus far, Florida has seen little significant climate change litigation beyond Reynolds. But businesses operating and investing in Florida might make tempting targets as plaintiffs groups and firms search for new oceanfront litigation forums.

If so, expect businesses to vigorously defend themselves. These cases sometimes rest on shaky jurisdictional ground (e.g., Is the case removable to federal court? Is there personal jurisdiction over out-of-state defendants?), allege untested causes of action (e.g., Do failure to warn or trespass claims lie against private energy producers? Are there untenable causation problems?) and implicate political questions (e.g., Can — or should — a court order, and administer, climate change remediation?).

There might be Lighthouse-like private pushback too. If Florida regulators block certain categories of commerce (e.g., fossil fuel transport or trade), discriminatorily deny development permits (e.g., applying climate considerations unevenly to different permittees) or otherwise act unevenly, expect the regulated community to push back.

As the next wave of climate cases crests into Florida, we'll likely see litigants tread even newer ground too. For instance, will litigants try to allege Florida Deceptive and Unfair Trade Practices Act claims against energy or financial services companies? Will plaintiffs put financial services companies, public utilities, power generators, manufacturers and other new classes of defendants in their climate crosshairs?

Will we see Juliana- and Reynolds­-style cases pop up across Florida, but with local charter or ordinance hooks — e.g., alleging that local governing documents guarantee citizens a stable climate, a clean environment and the like? And if some early cases suffer setbacks, will plaintiffs retool their theories and try again?

The Juliana plaintiffs are trying just that. After the Ninth Circuit rejected their case on separation of powers grounds, they've narrowed their requested relief to sidestep their earlier separation of power hurdles, and are now seeking leave to file an amended complaint. A similar move might be in the cards in Reynolds.

On the flip side, can private companies counterclaim as creatively as their opponents, under theories like tortious interference, injurious falsehood or defamation?

There's a lot of climate litigation ground left to tread — especially in Florida. Businesses, utilities and municipalities should buckle their seat belts, and begin thinking about how to defend themselves — and potentially even press their own climate cases.

Republished with permission. This article, "1st Fla. Climate Change Suit May Be Just The Beginning," was originally published by Law360 on April 20, 2021 (login required).

Notes

[1] Reynolds v. Florida, No. 1D20-2036 (Fla. 1st DCA).

[2] City of Imperial Beach et al. v. Chevron Corp. et al., No 18-15499 (9th Cir. 2020).

[3] New York v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. 2018).

[4] Juliana v. U.S., 947 F.3d 1159 (9th Cir. 2020).

[5] Lighthouse Resources Inc. v. Inslee, No. 18-cv-05005 (W.D. Wash. 2018).