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On March 21, 2022, the NAM filed an amicus brief in the Third Circuit arguing that public nuisance litigation seeking to drive national energy policy on climate change should not be heard in state court. This case, State of Delaware v. BP America Inc., et al., is part of a broader campaign involving more than two dozen cases that have been filed by cities, counties and states. The issue presented is whether putative state-law tort claims alleging harm from global climate change are removable because they arise under federal law. The NAM’s brief argued that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws. Further, as is evident from current geopolitical unrest, energy production has significant national security implications. A state court, wielding state law cannot simply decide to stop the sale of fossil fuel.

Unfortunately, on August 17, 2022, the Third Circuit affirmed the district court order remanding the case to state court, holding that there is no federal hook to allow the case to be removed to federal court.