On Tuesday, November 26th, Maine Attorney General Aaron Frey filed a lawsuit against thirteen fossil fuel corporations and the American Petroleum Institute.^[1] The suit alleges that these entities failed to warn and knowingly concealed the catastrophic consequences of fossil fuel consumption on Maine’s citizens, economy, and environment for decades.^[2] The State’s complaint details past, current, and future injuries caused by Defendants’ conduct and asserts claims spanning negligence, nuisance, trespass, and violations of the Maine Unfair Trade Practices Act.^[3]

Maine’s legal action reflects a broader strategy to hold oil and gas companies accountable for climate deception. It is the ninth state to bring a lawsuit against large oil and gas companies to recover damages for climate-related harms.^[4] As of November 26, 2024, over 20 states, tribes, cities, and counties have brought similar climate deception lawsuits, collectively representing more than one-quarter of the U.S. population.^[5]

These lawsuits share a unique feature; plaintiffs use state statutes and common law principles to bring claims against oil and gas giants rather than utilizing federal law.^[6] By framing their lawsuits under consumer protection statutes and public nuisance claims, state attorneys general can sidestep federal preemption arguments. This strategy serves a tactical advantage, as state courts are more favorable to state-law claims while federal courts tend to favor defendants in preemption arguments.[7]

Oil and gas companies have repeatedly sought to remove these cases to federal court, arguing that state claims based on deceptive marketing and failure to warn are inherently tied to global emissions, which is regulated by federal law.^[8]

However, by focusing on localized harm – such as deceptive marketing tactics or the failure to warn – plaintiffs argue that their claim falls squarely within the state’s jurisdiction and is not preempted by federal regulations, relying on the procedural precedent set in tobacco and opioid deception cases.^[9] Similar to the pending climate deception lawsuits, state-based claims were brought against defendant tobacco and opioid companies in efforts to hold companies accountable for misleading the public about their products’ harms.^[10] These strategies culminated in significant financial settlements; defendant tobacco companies were required to pay a $246 billion settlement to state governments as a part of a 25-year plan^[11] while four of the largest U.S. opioid corporations reached a $26 billion settlement with state and local governments in 2020.^[12]

Due to this strong procedural precedent, plaintiffs have been largely successful in asserting jurisdiction over defendant fossil fuel polluters. Courts across the First,^[13] Third,^[14] Fourth,^[15] Eighth,^[16] Ninth,^[17] and Tenth^[18] Circuits have remanded cases back to the state courts, rejecting defendants’ arguments for federal jurisdiction.^[19] Most recently, the California Supreme Court denied motions to dismiss nine climate lawsuits brought by the California Attorney General for lack of personal jurisdiction.^[20]

Despite these victories, the Second Circuit’s 2021 decision in City of New York v. Chevron Corp.,^[21] created a circuit split, opening the doors to Supreme Court review. There, the court dismissed New York City’s claims, holding that federal statutory law displaced plaintiff’s state public nuisance and trespass claims because the regulation of cross-border greenhouse gas emissions fell under federal jurisdiction through the Clean Air Act.^[22] The court additionally cited precedents such as American Electric Power Co. v. Connecticut^[23] and Native Village of Kivalina v. ExxonMobil Corp.,^[24] which limited the scope of climate-related claims under federal law.

Yet City of New York was different from other Circuit Court cases in that here, the initial action was brought in federal court – allowing the Second Circuit to consider the defendant’s preemption defense on its face, rather than under a heightened standard for removal.^[25] Despite this distinction, Mayor of Baltimore v. BP P.L.C , a lawsuit brought in state court, cited City of New York favorably in its order to dismiss the plaintiff’s complaint for failure to state a claim upon which relief can be granted.^[26]

In response to this perceived split, the Supreme Court has taken an increased interest in the matter. In 2024, the Court requested briefs from the U.S. Solicitor General on whether federal law preempts state law claims in climate deception cases such as Suncor Energy v. Board of County Commissioners of Boulder County in October 2022,^[27] Alabama v. California in May 2024,^[28][29] Though the U.S. Solicitor General has not yet issued briefs for the Alabama or Honolulu cases, U.S. Solicitor General Elizabeth B. Prelogar responded to Suncor Energy by emphasizing that petitioners in Suncor Energy “do not and could not plausibly argue that federal common law completely preempts respondents’ claims.”^[30] Her statements align with the Biden administration’s pledge to “strategically support ongoing plaintiff-driven climate litigation against polluters.”^[31]

However, with President-elect Donald Trump preparing to take office, the trajectory of these cases is uncertain. Trump has pledged to halt what he describes as “frivolous litigation” from environmental extremists and to bolster fossil fuel development, signaling a potential stalling, derailing, or even directly opposing federal support for these state-led lawsuits.^[32]

The outcome of these cases will shape the future of corporate accountability in the face of climate change. If plaintiffs prevail, they could secure billions in damages to fund adaptation and mitigation efforts, following the precedent set by tobacco and opioid litigation. However, the challenges posed by shifting political winds make the path forward uncertain. A new Trump administration would present significant obstacles for climate deception litigation, not only by shifting federal support away from plaintiffs but also by bolstering legislative and judicial efforts to insulate the fossil fuel industry from accountability.

As the political landscape shifts, the Biden administration has a final opportunity to solidify its support for state-led climate litigation. By ensuring that the Solicitor General writes favorable briefs for both the Honolulu and Alabama cases before an administration change in January, the current administration can help protect these cases from political interference and bolster the pursuit of justice for communities harmed by corporate deception. The road ahead is fraught with challenges, but the fight for climate accountability is more urgent than ever.

^[1] Complaint, State of Maine v. BP P.L.C., ME Super. Ct., (filed Nov. 26, 2024), https://perma.cc/CX9E-WBWF.

^[2] Id. at 2.

^[3] Id. at 6.

^[4] Center for Climate Integrity, Big Oil Accountability Lawsuits (Nov. 26, 2024), https://perma.cc/FHV6-9DNY.

^[5] Id.

^[6] Id.; see also Karen Zraick, Maine Becomes the Latest State to Sue Oil Companies Over Climate Change, The New York Times (Nov. 27, 2024), https://perma.cc/4V3Z-T88R.

[7] See generally Congressional Research Service, Where a Suit Can Proceed: Court Selection and Forum Shopping (March 21, 2024), https://perma.cc/9DMW-JP85.

^[8] Petitioner’s Brief at 14, Sunoco LP v. City & Cnty. of Honolulu, Hawaii, 144 S. Ct. 2627 (2024) https://perma.cc/YBR3-2VR5, https://www.supremecourt.gov/DocketPDF/23/23-947/301676/20240228105935605_Sunoco_pet.pdf.

^[9] See Maxine Joselow, Big Tobacco had to pay $206B. Is Big Oil next?, Politico: E&E News (Mar. 10, 2021), https://perma.cc/GS33-SJQP.

^[10] Id.

^[11] NPR Staff, 15 Years Later, Where Did All The Cigarette Money Go?, NPR: All Things Considered (Oct. 13, 2013),  https://perma.cc/NV68-QVZU

^[12] Brian Mann, 4 U.S. companies will pay $26 billion to settle claims they fueled the opioid crisis, NPR: Morning Edition (Fed. 25, 2022), https://perma.cc/VJ3G-WZWS

^[13] Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022).

^[14] City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022).

^[15] Anne Arundel County v. BP P.L.C., 94 F.4th 343 (4th Cir. 2024).

^[16] Minnesota v. API, 63 F.4th 703 (8th Cir. 2023).

^[17] City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020); County of San Mateo v. Chevron Corp., 960 F.3d 586 (9th Cir. 2020).

^[18] Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022).

^[19] See generally Korey Silverman-Roati, Cities, counties and states score major procedural win in climate liability suits against fossil fuel companies, Columbia Law School Sabin Center for Climate Change Law (May 12, 2023), https://perma.cc/J5Z3-9DTT.

^[20]  Fuel Industry Climate Cases, No. CJC-24-005310, 2024 WL 4476614, at *1 (Cal.Super. Oct. 08, 2024).

^[21] City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021).

^[22] Id. at 86.

^[23] American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011) (holding that the Clean Air displaces federal common law nuisance suits to abate domestic greenhouse gas emissions).

^[24] Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (holding that the Clean Air Act displaces federal common law damages claims).

^[25] City of New York v. Chevron Corp., 993 F.3d 81, at 88-89; Steven Siros, Oil Industry Scores Big Win in the Second Circuit Greenhouse Gas Litigation, Jenner & Block (April 5, 2021), https://perma.cc/3WVF-CQE4.

^[26]  Mayor and City Council of Baltimore v. BP P.L.C., No. 24-C-18-004219, 2024 WL 3678699, at *3 (Md.Cir.Ct. July 10, 2024).

^[27] Bd. of Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1247 (10th Cir. 2022), cert. denied, 143 S. Ct. 1795, 215 L. Ed. 2d 678 (2023).

^[28]  Alabama v. California, No. 158 ORIG, 2024 WL 4426505, at *1 (U.S. Oct. 7, 2024) (https://perma.cc/YRV5-C3CZ at 6) .

^[29] Sunoco LP v. City & Cnty. of Honolulu, Hawaii, 144 S. Ct. 2627 (2024) (https://perma.cc/SE5W-4N6S at 1).

^[30] Brief for the United States as Amicus Curiae at 15, Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm’rs of Boulder Cnty., 143 S. Ct. 1795 (2023).

^[31] See Id.; The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity, Biden For President (Aug 6, 2020), https://perma.cc/WR8V-2H92.

^[32] Agenda47: America Must Have the #1 Lowest Cost Energy and Electricity on Earth, DonaldJTrump.com (Sept. 7, 2023), https://perma.cc/JN67-4X7K.