Tracy Hester, ‘Climate Tort Federalism’

This essay explores how judicial federalism principles can help organize and structure emerging state law climate tort initiatives. Rather than add to the debate on whether courts are institutionally suited to hear these claims in the first place, or whether federal or state courts would offer the better venue, this analysis instead simply assumes that these state law actions are coming. If so, we could soon face a situation where multiple state and federal courts will host sprawling and conflicting state law climate liability tort claims involving overlapping plaintiffs and defendants. What principles offer the best path to structure and manage such an overwhelming litigative scrum?

Judicial federalism concepts could provide some of the guidance needed to structure and coordinate litigation in multiple fora at different levels of federal and state government. While most prior academic analysis has centered on how federalism allocates power between state and federal legislatures or agencies, similar concerns regarding preemption, displacement, and coordination will shape the complementary roles of federal and state courts in these lawsuits. The differing and idiosyncratic ways that state courts handle climate torts will reflect fundamental policy choices and principles built into the US Constitution, federal and state judicial and environmental statutes, and long-standing fundamental precedents and judicial practices on civil procedure.

This essay begins with a brisk look at the fate of prior federal common law climate tort actions, and sketches out the basic tenets and prior analyses of judicial federalism and its role in mass-party litigation. It then closely examines how climate tort claims under state law will pose fundamental challenges to the existing allocation of powers and responsibilities between federal and state courts, especially when federal courts host actions controlled by state law and when state courts hear claims involving extraterritorial impacts and the exercise of judicial authority over non-resident parties. Finally, after reviewing several instances where uncontroversial judicial notions of substantive jurisdiction and procedural rules yield troublesome results when applied to state law climate torts, it concludes with suggestions on how to use federalism principles to resolve some of these difficulties and better harmonize state law climate torts with the requirements of judicial federalism.

Hester, Tracy, Climate Tort Federalism (June 3, 2018). 13 FIU Law Review 79 (2018) (Symposium Issue).

First posted 2021-07-16 15:00:45

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