Suppose you had decided that the most important issue facing our planet was saving it from the possibility that some trace gas in the atmosphere, currently constituting about 0.04% of the air, might increase to 0.05%, or maybe even (oh no!) to 0.06%. What’s your strategy?
If you think like an environmentalist, the answer is simple: foment a barrage of civil lawsuits by states and municipalities against major oil companies, each seeking many billions of dollars in damages. The chance that such a strategy could ever have any measurable impact on the composition of the atmosphere is zero. However, with enough lawsuits from enough deep-pocketed plaintiffs, you could form an unstoppable juggernaut. Eventually you could coerce some gigantic settlement. Riches will be yours! It’s the American way.
And thus we have the Manhattan Contrarian series on what I have called the “stupidest litigations” in the country — the civil cases brought by states and municipalities, instigated by environmental advocates, against major oil companies, seeking multi billions on the ground that all extreme weather is caused by some tiny increase of CO2 in the atmosphere. My most recent update on this issue was more than four years ago, in April 2021. In the interim, the wheels of justice have been grinding slowly.
If you have the impression that this effort to change the world by civil litigation is some small or niche initiative, that impression would be completely wrong. This is a very large and very well-funded full court press intended to bring the oil companies to their knees. The very explicit model is the tobacco litigation of the 1980s and 90s. That litigation began as individual injury claims by smokers, but over time the states sensed the potential for major recoveries, and one by one they joined in the fray. A 1998 settlement with 46 states included a monetary payment of some $365 billion.
So how has Big Tobacco 2.0 been going? After many years of stalemate, the tide has recently been moving toward the oil company defendants.
The reasons are not hard to discern. Unlike with the tobacco litigations, there are no real injured parties, and nearly all of the claimed damage are based on hypothetical model predictions about future events. Perhaps more important to the specific litigation context, most of the conduct allegedly leading to damage has taken place outside the jurisdiction of the courts where the cases have been brought.
At the time of my 2021 update, the list of claims of this type — common law claims seeking damages from oil companies based on alleged climate impacts — included cases brought by the Cities of Oakland and San Francisco and County of San Mateo, California; the State of Massachusetts; the State of Rhode Island; the State of Delaware; the County of Boulder, Colorado; and the City of Baltimore, Maryland. Since then, the number of cases has continued to mushroom. For the list of cases I am relying on the U.S. Climate Change Litigation data base maintained by Columbia University. New filings have come from: in 2021, the City of Annapolis and Anne Arundel County in Maryland; in 2022, a group of municipalities in Puerto Rico, and the State of New Jersey; in 2023, Multnomah County (Portland), Oregon; in 2024, the State of Maine, Bucks County, Pennsylvania, and the City of Chicago; and just now in 2025, the State of Hawaii.
A big reason why the cases have been proceeding so slowly is that the state and municipality plaintiffs have almost all brought the cases in state courts; but the oil company defendants have sought to have the issues litigated in federal court. This leads to procedural maneuvering, where the defendants initially file a petition for “removal” in the state court, which puts the case in the federal court; but then the plaintiff moves to have the case “remanded” to the state court. Little by little, the states and municipalities have been winning the battle to have the cases proceed in the state courts. Their hope is that, once back in the state court, the case will be treated as a local matter of “nuisance” from emissions of a pollutant, without regard to the nationwide, and indeed worldwide, scope of CO2 emissions.
A big complication for the plaintiffs, as noted in my 2021 post, was that one such claimant, the City of New York, had brought a similar case, but had initiated it in federal court. This meant that the issue of whether the case could be “removed” to federal court never came up, and the case went straight to the issue of whether states had the power to regulate CO2 emissions under the rubric of common law “nuisance” in the face of the comprehensive regulatory scheme of the federal Clean Air Act. In the New York City case, the District Court dismissed the City’s claim, and the Second Circuit affirmed. This quote is from the Second Circuit’s 2021 opinion:
Such a sprawling case is simply beyond the limits of state law. To start, a substantial damages award like the one requested by the City would effectively regulate the Producers’ behavior far beyond New York’s borders. Since “[g]reenhouse gases once emitted ‘become well mixed in the atmosphere,’” . . . “emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China,” . . . Any actions the Producers take to mitigate their liability, then, must undoubtedly take effect across every state (and country). And all without asking what the laws of those other states (or countries) require. Because it therefore “implicat[es] the conflicting rights of [s]tates [and] our relations with foreign nations,” this case poses the quintessential example of when federal common law is most needed. . . .
As I noted in my 2021 post, “[T]he Second Circuit has laid down a marker that every state court that gets one of these cases will now need to deal with.”
And with that background we come to the latest updates, from two of the deepest blue states. The Superior Court of New Jersey, Mercer County, dismissed the New Jersey claims in an opinion back in February. The main precedent cited was the Second Circuit’s opinion in the New York City case:
This court’s decision is reliant upon and consistent with both federal and state courts across the country that have rejected the availability of state tort law in the climate change context. See City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) (“City of New York”). . . .
The Columbia climate change litigation data base does not provide further information as to whether that decision has been appealed.
Meanwhile, in January this year, the Circuit Court of Anne Arundel County, Maryland, dismissed the claims of Anne Arundel County and of the City of Annapolis. That court again relied substantially on the Second Circuit’s decision in the City of New York case, as well as a prior dismissal in July 2024 of the City of Baltimore case by another Maryland state court judge.
The Maryland cases are now on appeal to the Supreme Court of Maryland. This post at eidclimate.org has excerpts from amicus briefs filed by the U.S. Department of Justice and by 24 Attorneys General (of red states) supporting affirmance of the dismissal. From the DOJ amicus brief:
“Extending Maryland law to redress climate-related harms caused by activities that overwhelmingly occurred beyond state and international borders would override policy choices made by the federal government and Maryland’s sister states.” (emphasis added)
From the amicus brief of the 24 states:
“State and local governments cannot regulate the global atmosphere…no one State can ‘enforce its own policy’ on the others.” (emphasis added)
Hard as it may be to believe, the environmental lawyers hoping for a gigantic payday from this Tobacco 2.0 effort may well come up with nothing to show for it. We’ll see how the Maryland Supreme Court rules. But then, if that court comes out the opposite way from the Second Circuit, there will likely be a trip to the Supreme Court thereafter. The unstoppable juggernaut of environmental lawfare may turn out to be not so unstoppable after all.
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