A recent Supreme Court decision allowing soldiers to sue military contractors in state court undermines the Trump administration’s efforts to repeal state climate change laws, New York state and a coalition of environmental groups argue.
Last spring, the Justice Department sued New York and Vermont, seeking to invalidate the states’ “Climate Superfund” laws that require energy producers to pay for greenhouse gas emissions. But in notices filed in two federal courts on Tuesday and last week, groups supporting the states say the Supreme Court’s recent decisions suggest the states have an advantage.
In the April 22 decision in Hisenley v. Fluor, the justices ruled that a soldier injured in a suicide bombing at a U.S. military base in Afghanistan can sue a military contractor in state court for failing to supervise employees who made explosive vests.
Former Army specialist Winston Hierly has accused Fluor of failing to supervise Afghan employee Ahmad Naeb during an Army investigation. Fluor, based in Texas, argued that it could not sue because it was acting for the federal government during the war.
In a 6-3 decision written by Justice Clarence Thomas, the majority found that companies are protected when fulfilling government contracts, but Fluor failed to meet that obligation.
The Conservation Law Foundation and other groups intervening in the Justice Department’s case against Vermont say the Supreme Court’s decision emphasizes that federal law does not always override state law.
The Trump administration’s claims against Vermont “fail for the same reasons as Hisley’s preemptive defense,” the group wrote.
Like military contractors, the Justice Department in the Vermont Superfund case “has been unable to point to any specific constitutional or statutory text” to support its theory, the groups said.
The Trump administration’s claim that “the structure of the Constitution implicitly preempts state laws related to ‘interstate pollution'” has no basis in the text of the Constitution, the groups wrote. It added that the federal government also failed to establish a “material conflict” between “the unique interests of the Commonwealth” and Vermont law.
The group pointed out that the Supreme Court has ruled that state laws cannot be pre-empted “simply because there is a suspicion of an ‘indirect burden on federal activities,’ such as increased costs to the federal government.”
New York’s notice also pointed to a Supreme Court ruling that said the federal government “failed to identify a material conflict” between its purported interests and the Empire State’s climate change law.
The Justice Department said in court Tuesday that states’ references to the Supreme Court’s decision “are irrelevant to this case and ignore binding precedent.”
Adam Gustafson, principal deputy assistant attorney general in the Justice Department’s environmental division, argued in a 2021 appeals court ruling that interstate pollution is an area of ”inherent federal interest” and that conflicts arise when states seek damages for emissions that cross their borders.
He added: “Hisleyley, which deals with a completely different subject than interstate pollution, does nothing to question this long-standing precedent, much less implicitly overturn it.”
Environmental lawyers also suggested that the Supreme Court’s decision in Hisley could influence how judges treat attempts by the oil and gas industry to quash lawsuits from local governments seeking compensation for the costs of climate change.
Dan Farber, a law professor at the University of California, Berkeley, said in a recent blog post that if the Trump administration wants to argue that federal law blocks states from taking action on climate change, it will need to show specific federal law to support its claim.
“Arguments based solely on the inappropriateness of state regulation or the strength of national interests involved in the issue are not sufficient,” Farber said.
