Over the past ten or so years, imaginative plaintiffs have pressed “climate change cases” in federal and state courts across the United States. In these cases, plaintiffs (most commonly states, municipalities, or environmentalists) sue defendants (often energy companies, states, or municipalities themselves) seeking damages related to climate change. While these cases have proliferated across the country, Florida saw very few in the early going.

That changed in 2018, when a group of young Floridians filed the first major climate change case in Florida, suing several state officials and agencies for “unconstitutional contributions to climate change and creation and operation of a fossil fuel-based energy system.” Though Florida’s appellate courts recently affirmed dismissal of that case, Reynolds v. Florida, No. 1D20-2036 (Fla. 1st DCA), there’s likely more climate change litigation coming Florida’s way.

Climate Change Cases Generally

There are, generally speaking, four broad classes of climate change cases:

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

The first three classes of cases are generally alike: plaintiffs stretching common, commercial, and constitutional law as far as they can.

In the first kind of case, municipalities sue private companies, often energy companies, under state common law tort theories. For example, cities and states sometimes sue energy producers under public nuisance, trespass, negligence, failure to warn, and strict liability theories. These plaintiffs argue 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 second sort of case usually involves shareholders (and sometimes state attorneys general) suing businesses under fraud and deception theories, contending that the defendants misled public and private investors about climate change risk, assessment, and mitigation. These cases commonly include state consumer protection act-based claims, like those anchored in the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Although energy companies are typical targets, these cases sometimes rope in pension funds, banks, and other financial services companies, too.

In the third class of case, plaintiffs assert constitutional theories against governments and elected officials. These cases often argue that state officials are violating the plaintiffs’  “fundamental rights” including to a “stable climate” or “clean environment.” Reynolds (more on this shortly) exemplifies this bucket of cases.

The last category of cases turns the tables: businesses suing regulators for denying permits or blocking business activity under the auspices of climate change mitigation. These cases have challenged state actions under breach of contract, due process, Dormant Commerce Clause (which prevents states from unduly interfering with interstate and foreign commerce), and related theories.

Reynolds v. Florida and What Comes Next

Reynolds v. Florida marks Florida’s first notable entry into the international climate change row. In Reynolds, the plaintiffs sued an array of Florida state agencies and officials, including the Governor’s Office, the Florida Department of Environmental Protection (FDEP), 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 offer two untested theories: 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 a similar case (Juliana v. United States), the Court determined that the Reynolds plaintiffs presented “inherently political questions that must be resolved by the political branches of government,” dismissing the case under the political question and separation of powers doctrines. In late May 2021, the Florida First District Court of Appeal affirmed that decision, although the plaintiffs might seek Florida Supreme Court review.

Reynolds is probably just the tip of Florida’s climate change case iceberg. While Reynolds might foreclose more cases like it, don’t be surprised to see some Florida cities and counties file their own tort cases against private companies in the coming years. Likewise, Florida might experience its own wave of public and private investor-driven securities and commercial litigation cases. Businesses operating and investing in Florida might make tempting targets as plaintiff’s groups and firms search for new ocean-front litigation venues.

If that comes to pass, expect businesses and municipalities to aggressively defend themselves. As Reynolds shows, there are very tenable defenses to these types of claims and Florida’s courts won’t hesitate to apply them.

There might be private pushback, too. If Florida regulators—likely localities—block certain economic activity (like fossil fuel transport or trade), discriminatorily deny development permits (like inconsistently applying climate considerations in permitting processes), or otherwise act arbitrarily, 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 . For example, we might see plaintiffs put public utilities, power generators, manufacturers, banks, and other “new” kinds of defendants in their climate crosshairs. We could also see more Reynolds­-style cases spring up around Florida, but based on local charter or ordinance guarantees (e.g., claims that local governing documents guarantee citizens a stable climate, a clean environment, and the like).

Reynolds is likely just the first chapter of many in Florida’s climate change litigation book. Businesses, utilities, and municipalities should prepare  and begin thinking about how to defend themselves, press their own climate cases, and adapt to a new litigation landscape.

The original article, "Climate Cases Crest Into Florida: Reynolds v. Florida and What’s Next," was published in the June 2021 issue of the Florida Water Resources Journal (pages 50-51).